CHAPTER 20:03:08
TESTS
Section
20:03:08:01 Test defined.
20:03:08:01.01 Validity defined.
20:03:08:02 Discrimination through use of tests defined.
20:03:08:03 Continued use of unvalidated tests.
20:03:08:04 Employment agencies and employment services.
20:03:08:05 Disparate treatment.
20:03:08:06 Retesting.
20:03:08:01. Test defined. As used in §§ 20:03:08:01 to 20:03:08:06, inclusive, the term "test" means any paper-and-pencil or performance measure used as a basis for an employment decision. The rules in chapter 20:03:08 apply to, but are not limited to, ability tests which are designed to measure eligibility for hire, transfer, promotion, membership, training, referral, or retention. The term includes, but is not restricted to, measures of general intelligence, mental ability, and learning ability; specific intellectual abilities; mechanical, clerical, and other aptitudes; dexterity and coordination, knowledge, and proficiency; occupational and other interests; and attitudes, personality, or temperament. The term includes all formal, scored, quantified or standardized techniques of assessing job suitability including, in addition to the above, specific qualifying or disqualifying personal history or background requirements, specific educational or work history requirements, scored interviews, biographical information blanks, interviewers' rating scales, and scored application forms.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 1-27-1(7), 20-13-1(14), 20-13-10, 20-13-11, 20-13-12, 20-13-15.
20:03:08:01.01. Validity defined. As used in §§ 20:03:08:02 to 20:03:08:06, inclusive, the term "validity" means the established statistical relationship between a test instrument or other selection procedure and performance on the job.
Source: 6 SDR 59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-1(14), 20-13-10 to 20-13-12, 20-13-15.
20:03:08:02. Discrimination through use of tests defined. The use of a test which adversely affects hiring, promotion, transfer, or any other employment or membership opportunity of classes protected by the act constitutes discrimination unless the test has been validated and conforms to the guidelines on employee selection procedures issued by the U.S. equal employment opportunity commission, 29 C.F.R. 1607 (September 25, 1978), and the person giving a particular test or acting upon the results of that test can demonstrate that alternative suitable hiring, transfer, or promotion procedures are unavailable for his use.
Source: SL 1975, ch 16, § 1; 6 SDR 59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-1(14), 20-13-10, 20-13-12, 20-13-15.
20:03:08:03. Continued use of unvalidated tests. If determination of validity in a specific setting is practicable and required but not yet obtained, the use of the test may continue provided the person can establish validity as described in the guidelines on employee selection procedures issued by the U.S. equal employment opportunity commission, 29 C.F.R. 1607 (September 25, 1978), and he has in progress validation procedures which are designed to produce the additional data required.
Source: SL 1975, ch 16, § 1; 6 SDR 59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
20:03:08:04. Employment agencies and employment services. Employment agencies and employment services, both private and state shall do the following:
(1) Not make applicant or employee appraisals or referrals based on the results obtained from a psychological test or other selection standard not validated in accordance with this chapter;
(2) When requested by an employer or union to devise a testing program, follow the standards for test validation as set forth in this chapter. An employment service is not relieved of its obligation because the test user did not request validation or has requested the use of some lesser standard than is provided in this chapter; and
(3) If requested to administer a testing program which has been devised elsewhere, request evidence of validation, as described in this chapter, before it administers the testing program or makes referral pursuant to the test results, or both. The employment agency or service must furnish to the commission, on request, evidence of validation. An employment agency or service shall refuse to administer a test where the employer or union does not supply satisfactory evidence of validation. Reliance by the test user on the reputation of the test, its author, or the name of the test is not sufficient evidence of validity. An employment agency or service may administer a testing program where the evidence of validity comports with the standards provided in § 20:03:08:03.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
20:03:08:05. Disparate treatment. A test or other employee selection standard, even though validated against job performance in accordance with this chapter, may not be imposed upon any individual or class protected by SDCL 20-13 if other employees, applicants, or members have not been subjected to that standard. Those employees or applicants who have been denied equal treatment because of prior discriminatory practices or policies must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
20:03:08:06. Retesting. Employers, unions, and employment agencies must provide an opportunity for retesting and reconsideration to candidates who failed earlier who have availed themselves of more training or experience.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-10, 20-13-11, 20-13-12, 20-13-15.
