Statute · 1991

Can you use different cut scores for different groups in the United States?

United States law makes it an unlawful employment practice to adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race, colour, religion, sex or national origin. It applies to selection and referral for employment and for promotion.

Citation

Civil Rights Act of 1964, §703(l), as added by §106 of the Civil Rights Act of 1991, Pub. L. 102–166, 21 November 1991, 105 Stat. 1074–1076; codified at 42 U.S.C. §2000e-2(l).

Open — full text, free, no login42 U.S.C. §2000e-2, current text at uscode.house.gov

Primary source opened and quotes confirmed on 16 September 2026.

In its own words

“It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.”

42 U.S.C. §2000e-2(l), in full

What it does not say

Each of these is a claim made in this market and attributed to the source above. None of them is supported by it.

Commonly claimed: That you cannot set different cut scores for different jobs.

The prohibition is on adjusting scores on the basis of the listed protected characteristics. Setting a different standard for a different role, validated for that role, is a different thing entirely and is ordinary practice.

Commonly claimed: That there is therefore nothing to be done about a fairness problem in a test.

The honest remedies are more work than the shortcut, not less: analyse whether the construct being measured is the one the job requires, examine individual items for differential functioning, reconsider the weight the test carries in the decision, and check whether the cut score was ever justified against performance in the first place.

Commonly claimed: That it applies to employers outside the United States.

It is a provision of United States federal law. Other jurisdictions regulate this differently and some require the opposite of what a US employer would do. Nothing here is legal advice.

Why this one sentence is worth an index entry

Because the practice it prohibits is still recommended in good faith. Employer-facing guidance on assessing candidates who are not native speakers of the test language regularly suggests lower or more flexible cut-offs for that group, presented as an accommodation. Where national origin is the basis, that is the conduct this provision names.

The correction is uncomfortable in the right way: it takes away an easy remedy and leaves the harder one. If a test is measuring language proficiency where the job requires reasoning, the answer is to change the instrument or the weight it carries, not to move the line for some of the people taking it.

What to ask a vendor

Ask whether any scoring, banding or norming in the product varies by a protected characteristic, and ask for the answer in writing. Ask what the cut score was validated against, and on whose data. A vendor who cannot say what a cut score was justified by has left the employer carrying a decision with no evidence behind it.

Ask, too, what the product does at the boundary. A hard threshold with nothing either side of it treats a one-point difference as a decision, when the measurement error around a single score is usually larger than that.

Where this source is used here

These pages argue from the source above. If it is ever superseded, these are the pages that have to change.