Employers cannot adjust scores, use different cutoffs, or alter test results based on race, color, religion, sex, or national origin.
Key takeaways for three banned changes to hiring test scores
- Before you open the next test file, confirm that your scoring method does not include any of the three prohibited alterations.
- Employers are not permitted to (1) adjust the scores of, (2) use different cutoff scores for, or (3) otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin, according to U.S. Equal Employment Opportunity Commission.
- This rule applies to the specific bases named in that guidance; it does not describe a universal standard for every state or every private product.
- If your current process involves modifying a score or applying a different threshold for different groups, stop and review that step immediately.
Three score changes are off limits under the cited guidance
The cited guidance from the U.S. Equal Employment Opportunity Commission states three prohibitions on changing employment-test scores. First, an employer may not adjust the scores of employment-related tests on the basis of race, color, religion, sex, or national origin. Second, an employer may not apply different cutoff scores to different groups. Third, an employer may not otherwise alter the final results of employment-related tests. These restrictions apply specifically when the alteration is based on race, color, religion, sex, or national origin, as stated in the guidance for Employment Tests and Selection Procedures, according to U.S. Equal Employment Opportunity Commission.
Beyond direct manipulation of scores, the law addresses the impact of neutral tools. Title VII prohibits the use of neutral tests or selection procedures if they disproportionately exclude persons based on race, color, religion, sex, or national origin. This prohibition applies when the tests or selection procedures are not “job-related and consistent with business necessity.” The guidance identifies this specific scenario as “disparate impact” discrimination, according to U.S. Equal Employment Opportunity Commission.
Read a related hiring test check for a related check.
Intentional misuse of these tools also violates federal anti-discrimination laws. An employer violates these laws if they intentionally use tests or selection procedures to discriminate based on race, color, sex, national origin, religion, disability, or age (40 or older), according to U.S. Equal Employment Opportunity Commission. The legal basis for these protections includes Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1967. These statutes prohibit the use of discriminatory employment tests and selection procedures, according to U.S. Equal Employment Opportunity Commission.
The three forbidden score changes
The U.S. Equal Employment Opportunity Commission page titled "Employment Tests and Selection Procedures" lists three specific actions that employers are not permitted to take with employment-related test results. These prohibitions apply strictly when the action is based on race, color, religion, sex, or national origin, according to U.S. Equal Employment Opportunity Commission. The first banned change is adjusting the scores of the tests. The second is using different cutoff scores for different applicants. The third is otherwise altering the results of the tests.
These rules apply to a wide range of assessment tools. The same EEOC page notes that there are many different types of tests and selection procedures, according to U.S. Equal Employment Opportunity Commission. The page specifically includes cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks in this category, according to U.S. Equal Employment Opportunity Commission. If your small firm uses any of these tools to screen applicants, the three bans apply to the scoring process.
To stay compliant, ensure your scoring method is identical for every person taking the same test for the same job. The same applies if you lower the cutoff score for one group or raise it for another. Employers are not permitted to otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin, according to U.S. Equal Employment Opportunity Commission.
Illustrative example: one cutoff for one typing test
A small office gives the same typing test to 3 people and uses one cutoff of 75 words each minute. The first result is 55, the second is 75, and the third is 80. The office does not adjust the scores. It does not use a different cutoff for anyone on the basis of race, color, religion, sex, or national origin. It does not otherwise alter the results on those bases. The test covers typing, and typing is the job task. The same day, the office files the one cutoff, the job task, and the filing date. These figures are illustrative.
Three kinds of validity evidence named in the guidelines
The federal regulations identify three specific pathways for validating a selection procedure. Users may rely upon criterion-related validity studies, content validity studies, or construct validity studies to satisfy these guidelines, in accordance with the standards set forth in the technical standards of these guidelines, section 14 below, according to Legal Information Institute. Each pathway requires distinct types of data to demonstrate that the test measures what it claims to measure.
Criterion-related validity evidence must consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance, according to Legal Information Institute. This approach links test scores directly to observed job outcomes. If a test predicts who performs well on the job, the data must show that correlation clearly. The regulation specifies that the data must be empirical, meaning it comes from observation or experience rather than theory alone. The connection must be to important elements of job performance, not trivial tasks.
Content validity evidence should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated, according to Legal Information Institute. This method focuses on what the test actually asks. If the job requires typing speed, the test should measure typing speed. The data must show that the test items represent the critical parts of the job. It is not enough for the test to be related to the job; it must cover the important aspects of performance.
See a job task list guide when you list the job task.
Construct validity evidence should consist of data showing that the procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important in successful performance in the job for which the candidates are to be evaluated, according to Legal Information Institute. This approach looks at the underlying traits or abilities the test measures. The characteristics must be identifiable and determined to be important for successful performance. The data must show that the test accurately measures the degree to which candidates possess these specific traits.
What the staffing pages say you should document
The U.S. Office of Personnel Management states that agencies should develop and maintain the necessary documentation to support their selection processes, according to U.S. Office of Personnel Management. This guidance directs the proactive creation and upkeep of records for selection tools. The same source notes that each agency is responsible for ensuring assessments meet all regulatory and legal criteria, according to U.S. Office of Personnel Management. This statement assigns direct accountability to the agency for meeting legal standards.
You do not have to build this expertise from scratch. Measurement specialists can assist in selecting or developing valid, fair, and effective assessment tools to meet specific hiring needs, according to U.S. Office of Personnel Management. This indicates that professional help is available for the technical aspects of test validation. You can use these specialists to ensure your tools are effective.
To document your process, start by identifying which selection procedures you use. For each procedure, check if it has an adverse impact. If it does, gather the documentation required by the relevant regulations. Keep these records available for review. If you are unsure about the validity of your tools, consider consulting a measurement specialist. This step helps you meet your documentation duties.
A hiring decision notes page can hold the notes from that review.
Filled reference table of each publisher's testing rule
Use the table below to verify that your current test administration aligns with the specific standards cited by these sources.
| Publisher | Testing Rule or Standard | Source Context |
|---|---|---|
| U.S. Equal Employment Opportunity Commission | Employers are not permitted to (1) adjust the scores of, (2) use different cutoff scores for, or (3) otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin. | Employment Tests and Selection Procedures |
| Legal Information Institute | Evidence of the validity of a test or other selection procedure by a criterion-related validity study should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance. | 29 CFR § 1607.5 - General standards for validity studies |
| U.S. Office of Personnel Management | Each agency is responsible for ensuring assessments meet all regulatory and legal criteria. | Other Assessment Methods |
| Job Accommodation Network | If an employer requires typists to accurately type 75 words each minute, the employer is not required to show that such speed and accuracy are "essential" to a job or that less accuracy or speed would not be adequate. | Job Description Topics |
| Job Accommodation Network | If a hotel requires housekeepers to thoroughly clean 16 rooms per day, it does not have to justify this standard as "essential," but if a person with a disability is disqualified, the employer should be prepared to show it does in fact require employees to perform at this level. | Job Description Topics |
Write the one cutoff you will use for every person and file it with the job task it is meant to measure.
Hiring-test score FAQ
What does job-related and consistent with business necessity mean on that page?
Title VII also prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not “job-related and consistent with business necessity,” according to U.S. Equal Employment Opportunity Commission. This specific prohibition is called “disparate impact” discrimination, according to U.S. Equal Employment Opportunity Commission.
What are the three kinds of validity evidence?
For the purposes of satisfying these guidelines, users may rely upon criterion-related validity studies, content validity studies or construct validity studies, in accordance with the standards set forth in the technical standards of these guidelines, section 14 below, according to Legal Information Institute. Evidence of the validity of a test or other selection procedure by a criterion-related validity study should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance, according to Legal Information Institute. Evidence of the validity of a test or other selection procedure by a content validity study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated, according to Legal Information Institute. Evidence of the validity of a test or other selection procedure through a construct validity study should consist of data showing that the procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important in successful performance in the job for which the candidates are to be evaluated, according to Legal Information Institute.
What documentation does the staffing page mention?
Agencies should develop and maintain the necessary documentation to support their selection processes, according to U.S. Office of Personnel Management. For any selection procedure which is part of a selection process which has an adverse impact and which selection procedure has an adverse impact, each user should maintain and have available such documentation as is described in section 15 below, according to Legal Information Institute.
What do you file today?
File the one cutoff, the job task it measures, and the filing date.