Most employment testing discrimination claims fall under the “disparate impact” analysis. A test for employment that is not on its face discriminatory, but has a disproportionate impact on people of a certain protected characteristic, i.e. race, gender, religion or age, may be discriminatory. In order to demonstrate that the test is discriminatory, you will need to be able to show that it has a negative impact on employees or applicants of a protected group (race, gender, religion or age). For example, a job or test that has a height requirement could prevent certain minorities or women from being qualified for the job.
The employer will try to defend the test or practice by arguing that it is “job related for the position in question and consistent with business necessity.” An example of this is a requirement that an employee or applicant be able to lift a certain amount of weight. The practice may disproportionately impact women. The employer would argue that the lifting of a certain amount of weight is a requirement for the job and, therefore, it is a business necessity.