SECTION 335:15-13-4. Evidence of employment test's validity as nondiscriminatory; "technically feasible" defined

(a)   Each person using tests to select from among candidates for a position or for membership shall have available for inspection evidence that the tests are being used in a manner which does not violate the definition of test as defined in Section 335:15-13-2. Such evidence shall be examined for indications of possible discrimination such as instances of higher rejection rates for minority candidates than non-minority candidates. Furthermore, where technically feasible, a test should be validated for each minority or sex group with which it was used; that is, any differential rejection rates that exist, based on a test, must be relevant to performance on the jobs in question.

(b)   The term "technically feasible" as used in this Subchapter means having or obtaining a sufficient number of minority individuals to achieve findings of statistical or practical significance, the opportunity to obtained unbiased job performance criteria, etc. It is the responsibility of the person claiming absence of technical feasibility to positively demonstrate evidence of this absence.

(c)   Evidence of a test's validity should consist of empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.

(1)   If job progression structures and seniority provisions are so established that new employees will probably, within a reasonable time and in a great majority of cases, progress to a higher level, it may be considered that candidates are being evaluated for jobs at that higher level. However, where job progression is not so nearly automatic, or the time span is such that higher level jobs or employees' potential may be expected to change in significant ways, it shall be considered that candidates are being evaluated for a job at or near the entry level. This point is made to underscore the principle that attainment of or performance at a higher level job is a relevant criterion in validating employment tests only where there is a high probability that persons employed will, in fact, attain that highest level job within a reasonable period of time.

(2)   Where a test is to be used in different units of a multiunit organization and no significant differences exist between units, jobs, and applicant populations, evidence obtained in one unit may suffice for the others. Similarly. where the validation process requires the collection of data throughout a multiunit organization, evidence of validity specific to each unit may not be required. There may also be instances where evidence of validity is appropriately obtained from more than one company in the same industry. Both in this instance and in the use of data collected throughout a multiunit organization, evidence of validity specific to each unit may not be required: Provided, that no significant differences exist between units, jobs, and applicant populations.