Where a test has an unlawful discriminatory impact, e.g., the test, though objective, produces a result biased against individuals as a class based upon their race, color, nationality, ancestry, sex, pregnancy, sexual orientation, age or disability, disparately impacted employees have a cause of action for unlawful discrimination.
See e.g., Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Service (3rd Cir. 1987) 832 F2d 811, 816–817; Easley v. Anheuser–Busch, Inc. (8th Cir. 1985) 758 F2d 251, 263.
The point here is that the employer can give a test, and the test can even be an unfair evaluation of an employee's talent and abilities. But, if the test unfairly impacts a protected class, then the test is unlawful and those employee's who are adversely affected can sue.
There is no way for me to evaluate your test to determine its fairness. However, you can simply file a claim with the Department of Fair Employment and Housing, and let the agency determine if the test is fair. See this link for more info
Hope this helps.
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