Pre-Employment Testing: Proceed With Caution

Caveat emptor…buyer beware! This well-known consumer warning means that smart shoppers should do their research, compare options, and make sure they’re getting the best value for their money. It’s the same for a business owner or hiring manager, for whom no investment is more important than his or her employees. That’s why we take care to be thorough and detailed in all aspects of the recruitment process, from initial screenings through reference checks.

Similarly, pre-employment testing can be an effective means of determining which applicants are most qualified for a particular job. However, employers must proceed with caution, as use of these tests may violate federal and state nondiscrimination laws.

Examples of Pre-Employment Testing

Let’s take a look at some of the basic tests employers might give, many of which can even be administered online:

  • Cognitive tests assess reasoning, memory, perceptual speed, and accuracy. They can also measure skills in arithmetic and reading comprehension, as well as knowledge of a particular function or job.

  • Physical ability tests measure the physical ability to perform a particular task or the strength of specific muscle groups, as well as strength and stamina in general.

  • Sample job tasks are administered to assess performance and aptitude on particular tasks. These could include performance tests, simulations, work samples, and realistic job previews.

  • Personality tests and integrity tests assess the degree to which a person has certain traits or dispositions, such as dependability, cooperativeness, or safety. These kinds of tests may also aim to predict the likelihood that a person will engage in certain conduct such as theft or absenteeism.

  • Background checks provide information about an applicant’s employment history, education, criminal record, or financial history. In some instances, the extent to which an employer may consider certain information provided by a background check is regulated by federal law, and it can also vary from state to state. Due to the complexities of the law in this area and the sensitive nature of background checks, it is important to consult with an employment attorney before conducting any background checks.

Pre-Employment Testing Must Not Violate Nondiscrimination Laws

As mentioned earlier, the use of certain pre-employment tests may violate federal and state nondiscrimination laws. On the federal level, Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) prohibit the use of discriminatory employment tests and selection procedures. Title VII and the ADA apply generally to private employers with 15 or more employees, while the ADEA applies to those with 20 or more employees.

  • Title VII prohibits intentional discrimination based on race, color, religion, sex, or national origin. It also prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons on those bases, unless the tests or selection procedures are job-related and consistent with business necessity. The U.S. Equal Employment Opportunity Commission’s Uniform Guidelines on Employee Selection Procedures provide guidance for employers on how to demonstrate that their employment tests and other selection criteria are job-related and consistent with business necessity. This is called "validation."

  • Among other things, the ADA specifies when employers may ask disability-related questions or require applicants to undergo a medical examination. It also prohibits the use of employment tests that screen out or tend to screen out individuals with disabilities, unless the employer can show that the test is job-related and consistent with business necessity. The ADA also requires covered employers to make reasonable accommodations, including in the administration of tests, to the known physical or mental limitations of an otherwise qualified applicant with a disability in the absence of undue hardship.

  • Similar to Title VII, the ADEA prohibits intentional discrimination based on age (40 and over), as well as the use of neutral tests or selection procedures that have a discriminatory impact on persons based on age, unless based on a reasonable factor other than age.

  • In addition to federal law, state nondiscrimination laws may also apply to pre-employment testing, including for employers with fewer than 15 employees.

EEOC Pre-Employment Testing Best Practices

Before administering a test or other selection procedure, employers should ensure that all applicable federal and state requirements for conducting the test are met (for example, obtaining an employee’s written consent for a background check). The U.S. Equal Employment Opportunity Commission provides a number of other best practices for employers related to pre-employment testing. These include:

  • Administering tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.

  • Ensuring that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under Uniform Guidelines.

  • If a selection procedure screens out a protected group, determining whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopting the alternative procedure.

  • Keeping abreast of changes in job requirements to ensure that a test or selection procedure remains predictive of success in a job, and updating the test specifications or selection procedures accordingly.

Ensuring that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

There are a number of reputable vendors in the marketplace that offer pre-employment screening solutions and can help you in navigating some of these issues. Due to the number of legal issues involved, it would also be prudent to consult with a knowledgeable employment law attorney to make sure that your practices comply with the law.

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