White Paper: Wonderlic Assessments—Legal History and Issues

Periodically employers are inclined to believe that professionally developed assessments are lightning rods for litigation. In reality, the appropriate use of assessments does not tend to motivate job applicants to file lawsuits. In fact, applicants commonly report that tests are viewed as a much fairer and objective way to help select employees when compared to interviews where personal bias can substantially affect a hiring decision. As reported below, a very small percentage (0.3%) of recent Equal Employment Opportunity Commission (“EEOC”) lawsuits have focused on testing.

Turning to actual litigation surrounding Wonderlic’s specific assessments, over thirty-five years ago an earlier version of the Wonderlic Personnel Test (“WPT”) was one selection mechanism at issue in Griggs v. Duke Power, 401 U.S. 424(1971). Here a suit was brought by African American employees at Duke’s power generating facility in Draper, North Carolina. The relevant area of the plant was comprised of five departments: Labor, Coal Handling, Operations, Maintenance and Laboratory and Test.

Initially African Americans were only employed in the Labor Department, where the highest paying job paid less than the lowest paying job in any of the other departments. In 1965 the company discontinued its intentional discrimination practices and allowed African Americans to work outside the Labor Department. However, the company set up the following selection criteria. For current employees, applicants for a job outside the Labor Department were required to have a high school diploma or pass two intelligence tests—one being the WPT. External applicants were required to have a high school diploma and pass the two tests.

Here the U.S. Supreme Court held that the employer’s requirements had a discriminatory (disparate) impact on African Americans and hence they must bear a demonstrable relationship to the successful job performance. Given the fact that the jobs in the other departments were still extremely low level positions, the employer was unable to show the educational and testing requirements were job-related and consistent with business necessity.

In the wake of the Supreme Court’s holding and for almost forty years thereafter, employers have continued to use various educational requirements and cognitive abilities tests (e.g., WPT) in their selection processes. However, due to the Griggs opinion, employers are aware that the use of cognitive abilities tests, educational requirements, criminal background checks, credit checks, drug tests, physical requirements, experience requirements and other hiring tools that tend to have a disparate impact must be justified by the job’s requirements. Note, this was the case in Cormier v. PPG Industries, 519 F.Supp 211, aff’d 702 F.2d 567 (5th Cir. 1983) where the court determined that the employer’s use of the WPT was non-discriminatory and job-related. Consistent therewith, the 2009 opinion of the U.S. Supreme Court in Ricci v. DeSteffano, 129 S.Ct. 2658 (2009) stated that “Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent.” Parenthetically, Wonderlic’s non-cognitive assessments (e.g., WPI-BQ) have consistently been shown not to exhibit any disparate impact.

Conclusion

Wonderlic has observed very little litigation with respect to the use of its tests. In those few instances where the use of our assessments has been the focus of an EEOC complaint, our clients have typically been able to justify the use of our assessments documenting a lack of adverse impact or showing job-relatedness via a job analysis and validity generalization –using the correlation validity evidence from studies cited in Wonderlic’s user manuals, technical reports and professional literature.

In the event of a formal challenge against the use of a Wonderlic assessment, our psychologists are available to assist our clients in addressing the matter. They are available at no charge, excepting travel expenses, to assist in responding to the agency, preparing affidavits and providing testimony for depositions, hearings and trials.