On December 3, 2007, the Equal Employment Opportunity Commission (EEOC) issued a fact sheet on employer-administered tests and other selection procedures. Issued in response to an observed increase in employment testing and employment testing-related charges, the fact sheet describes recent EEOC enforcement actions that illustrate principles on testing and focuses on best practices for employers to follow when using employment tests and other screening devices. Such devices, including cognitive tests, personality tests, medical examinations, credit checks and criminal background checks, can violate Title VII, the Americans with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) if used to intentionally discriminate based on race, color, sex, national origin, religion, disability or age (40 or older), or if they have a disparate impact on any of these groups.As part of its best practices for administering tests without regard to race, color, national origin, sex, religion, age or disability, the EEOC advises employers to ensure that their tests are properly validated for the positions and purposes for which they are used and not just rely on a test vendor’s documentation supporting the validity of a test. In addition, employers should monitor changes in job requirements and update selection procedures accordingly. The fact sheet is available at http://www.eeoc.gov/policy/docs/factemployment_procedures.html.

The EEOC has revised its policy on the use of intake questionnaires. When an intake questionnaire contains all the information required by EEOC regulations governing the contents of a charge and constitutes a clear request for the agency to act, the EEOC will “docket” the questionnaire as a charge and provide notice of the charge to the respondent within ten days.

Reed Russell, formerly a counsel in Akin Gump’s Washington labor and employment group, has become the new Legal Counsel at EEOC. The EEOC Legal Counsel runs the EEOC’s Office of Legal Counsel, which advises the Commission on policy matters.

EEOC’s systemic initiative, focused on pursuing more high impact investigation and litigation, is showing results. The number of EEOC Commissioner charge investigations under both Title VII and the ADA has increased dramatically since the systemic initiative was launched in 2006. The EEOC is targeting respondents for its Commissioner charges by evaluating industry-specific practices, its past experiences with particular respondents, including charge histories, and reviews of EEO-1 filings. In 2007, the EEOC announced its E-RACE initiative, which will focus on more subtle forms of race and color discrimination. The EEOC has stated that it will look more carefully at discrimination resulting from hiring and promotion decisions based on discrete employment policies, such as disparate impact resulting from the use of employment or personality tests, credit scores, advanced technology and conviction records.