Is Employment Testing Legal?

The science of employee selection has come a long way.

Over the last several decades, how and why employment decisions are made have received rigorous scrutiny by social scientists, and industrial-organizational psychologists have worked together to increase the predictive power of selection interviews, background data, job simulations, psychological assessments, and preemployment tests. The net result is that hiring managers and HR professionals no longer must rely on a “gut feeling” when choosing their next employee, supervisor, manager or leader.

Yet, in the courtroom, it has been a bit of a bumpy road for pre-employment testing, in particular, during its early introduction into the workplace. Even today, organizations considering pre-employment testing question whether employment testing is even legal.

The answer is yes….if done correctly.

During my 18-year tenure at what was, at the time, the world’s largest brewing company, I worked closely with employment attorneys and internal general counsels. My responsibility as chief psychologist was overseeing all testing and/or selection procedures for the company.

My employer was never in court over these procedures or assessment tools because we were successful at avoiding some of the hidden landmines that come with employment testing. And the benefits were immense in terms of the quality of a talented workforce hired over those years.

But what should you know about pre-employment testing and the law?

The U.S. has a number of strongly enforced anti-discrimination laws that limit the way organizations can use pre-employment testing programs for HR decisions. The most noted of these are the 1964 and 1991 Civil Rights Acts, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).

To clarify the requirements of these legislative acts, the EEOC (U.S. Justice Department) and other related government agencies prepared the Uniform Guidelines on Employee Selection Procedure. Over the years, the courts have used the Uniform Guidelines as a litmus test for proper pre-employment testing and other hiring procedures.

More simply, a valuable rule of thumb is to ensure all tests measure important job requirements. This the most basic form of test validity and is one of the major requirements of the Uniform Guidelines. Doing this ensures, but does not guarantee, your company is using selection practices that fall within legal requirements.

In most cases, employment laws are consistent with good business practices. I can’t conceive of an effective leader purposely using a pre-employment test that measures something other than what is needed on the job. However, you can’t just assume you’re using the proper test; you need to do your homework.

You must check into the validity of the test for your specific application.  Rather than simply buying a pre-employment test online – and yes, there are many out there – talk with the vendor to obtain the documentation you need to defend your test if questioned by the EEOC or the courts.

In Summary

Professionally developed and administered pre-employment tests are the single most reliable way to obtain an objective assessment of a candidate’s attitude, skills and abilities. When initiated and practiced consistent with the Uniform Guidelines, you will not only hire the best employees, you can rest easier.

Here are several steps I recommend:

  • Research and ask questions of vendors.
    • Is the test appropriate for the job being filled? (This is called job-relatedness.) Will the vendor take steps to prove this?
    • Will you send me a job-relatedness report for the jobs?
    • Does the test have validation evidence? Does it measure what it says it measure? Does it predict job performance? Again, ask the vendor for proof. They should have a write-up (validation study) to send you.
  • Be consistent in your hiring practices.
    • If you test one candidate for a position, you must test all candidates for that position.
    • Use consistent cut-scores (minimum qualifications/test scores) across all candidates.
    • Use only professionally developed pre-employment tests. Beware of IT dominated companies that do not employ industrial-organizational psychologist(s). These are the experts who provided input to the development of the Uniform Guidelines.

These are very basic recommendations, so a discussion with your attorneys or general counsel on the full requirements of the law is suggested.  But the bottom line is – if you follow good business practices and treat all candidates fairly, you will likely fall in line with the requirements discussed above and benefit from a talented workforce.

David Smith, PhD, is the President and CEO of EASI•Consult®. EASI•Consult works with Fortune 500 companies, government   agencies, and mid-sized corporations to provide customized Talent Management solutions. EASI•Consult’s specialties include leadership assessment, online pre-employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about EASI•Consult, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.

EASI·Consult® is the registered name for Expert Advocates in Selection International, LLC.
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