The Reagan administration reopened a bitter civil rights debate this week with the announcement that it would reexamine the guidelines controlling the screening tests employers may use when making hiring decisions.
Many civil rights groups feel the guidelines provide protection against employe selection methods that, by design or not, screen out blacks, Hispanics and women. But employers and management consulting firms engaged in test development see the rules as misguided interference with objective tests designed to identify competent and productive workers.
"There isn't any question that tests have historically been used to exclude blacks," argues Joseph L. Rauh, general counsel of the Leadership Conference on Civil Rights. " . . . Whether deliberate or not, the tests that government and private industry have used historically have weakened the chances . . . of blacks to gain jobs."
"These guidelines have just departed from the traditional rationale for testing guidelines -- that there be job-relatedness to the tests," said Frank Erwin of Richardson, Bellows, Henry & Co. Inc., a Washington consulting firm specializing in the development of such tests. "These guidelines were a conscious effort to move employers away from valid instruments to something else that met affirmative action goals."
This debate, born in the early years of the civil rights movement, has gone on in different Washington arenas -- from Capitol Hill to the Equal Employment Opportunity Commission to the Supreme Court -- for more than a decade.
During that time, legislation, court decisions and regulatory actions have increasingly favored the civil rights groups' claim that the validity of a screening test can depend on its results. In its simplest form, the argument goes: if the proportion of minority and female applicants passing a test is roughly equivalent to the proportion of these groups in the applicant pool, the test is okay. If not, it is suspect.
The guidelines, among 30 regulations targeted for review by Vice President Bush's Task Force on Regulatory Relief this week, are based on Title VII of the Civil Rights Act of 1964. But, in keeping with the trend of court decisions on issues like school busing, they are based largely on the civil rights groups' premise.
Even as they were being written during the Ford administration, the guidelines were the source of acrimonious arguments, with members of the EEOC rejecting as inadequate a version drawn up by staffers of the EEOC itself and the Labor and Justice departments.
The issues in that debate had to do with specific legal concepts such as burden of proof. The rules the EEOC finally agreed to gave an employer whose tests had been challenged by a job applicant or the government much of the responsibility for showing his tests bore a reasonable relation to job performance and that he could not come up with other tests that were less discriminatory.
Specifically, the guidelines hold that a test had an "adverse impact" if the selection rate for the least successful group is less than 80 percent of the rate for the most successful group. An EEOC finding of an adverse impact would force an employer to prove the validity of his test.
The guidelines also required extensive record-keeping, involving the race, sex and national origins of job applicants -- requirements that are a particular concern of the Bush task force.
"If you take the data out, you take out a key part of the enforcement process," said William L. Taylor, director of the Center for National Policy Review at Catholic University Law School.
Karen Denart, a member of the EEOC's office of policy implementation, said yesterday she received approval this month from the Office of Management and Budget for a survey of the effect of the paperwork requirements associated with the guidelines.