Legal Consideration about the use of Pre-Hire Assessments

The ambition of this article is to inform/educate you on the legal side of testing applicants for hiring purposes. It is important that you understand the law before you decide to use personality assessments to evaluate candidates soft skills.

There are a few rules to know and the short version of it is: Yes you can test people, no you can’t discriminate. Many pre-employment tests exist on the market. More than 3,000 firms offer pre-employment testing services to assess technical or administrative ability, personality and medical conditions.

Good tests can reveal skills and capabilities that you might not glean from an application or an interview. Such tests can also lower the incidence of theft and accidents in the workplace and reduce the likelihood of negligent-hiring suits.

The Legality Challenge

If you decide to test applicants, you must ensure that the tests you use (1) don’t discriminate, (2) are required of all candidates without exception and (3) assess skills or aptitudes relevant to the position being filled. In other words, any assessment used must be strictly job-related.

Is pre-employment testing legal? The answer is “Yes, but.” The “yes” answer qualifies as long as a pre-employment test is administered according to the test developer’s intended use. It isn’t the test that is “legal” or “illegal,” it is the APPLICATION of the test that makes the difference!

Some states, such as Massachusetts, Minnesota, Rhode Island and Wisconsin, severely restrict or outlaw various personality tests. Massachusetts, for example, prohibits employers from requiring an applicant to take a written examination to determine honesty. So before you screen applicants, check with your attorney regarding what restrictions might apply in your state.

Simply stated, if you use a test to measure specific attributes that are needed on the job, it must exhibit evidence of validity in evaluating such attributes. Additionally, such tests would have to be administered to every candidate for the same position with- out exception. Proceeding differently would open the door to legal trouble.

For example, you could administer an accounting aptitude test to all candidates for an accountant position. But administering such test only to a few candidates for that position would be discriminatory. Doing so would definitely be considered a discriminatory practice by the EEOC and would expose you to legal issues.

The E.E.O.C. Position

In recent years there has been a lot of misinformation published regarding the legality of using pre-employment assessments. One question often asked is: does the EEOC or the Office of Federal Contract Compliance validate pre-employment assessments?

The answer is definitely no. The extent of their authority is to audit or investigate unacceptable procedures when a discrimination charge has resulted from adverse impact. Their investigation does not just target pre-employment tests but pertains to all employee selection procedures.

Your most serious concern is to stay away from tests that have been shown to have a “disproportionate adverse impact” on minorities, women and the physically challenged, unless you can demonstrate a business necessity for them.

This issue is strictly regulated by the Federal Government’s Uniform Guidelines on Employee Selection Procedures. The EEOC actually released a fact sheet to assist employers in understanding how to avoid employment discrimination claims based on tests and other selection procedures. The main points are given below:

• “Employers should administer interviews, tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
• “Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose.
• “If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
• “To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
• “Employers should ensure 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.”

(Source: Fact Sheet. “Employment Tests and Selection Procedures.” EEOC.gov. Equal Employment Opportunity Commission. n.d. Web. Aug. 4, 2010)

You may obtain a copy of the Uniform Guidelines from the U.S. Government Printing Office by calling [phone] or on the Web at www.gpo.gov.

When Should You Administer the Recru-Tec™ Test?

The best time to suggest a candidate to complete the Recru-Tec Test is after the first interview. Three reasons for this: (1) you have already pre-selected the applicant on observable, objective criteria, so the test results should not entirely challenge your observations; (2) the applicant has been introduced to your company and feels more at ease with your hiring procedure; and (3) every pre-selected applicant will be more willing to go through the testing process if they know they are of potential interest to you.

We strongly recommend that you do NOT use the Recru-Tec Test or any pre-employment test prior to meeting an applicant for the first interview. Our philosophy is that any assessment should either comfort your first evaluation or challenge some specific attributes which you observed to be lacking or weakly measured during the interview. But no test by itself should ever lead you to make a decision to hire – or not to hire.

Whenever you consider using any pre-employment test, ensure that the test provider can issue evidence of non-adverse impact as well as validity and job-relatedness. Remember that the main cause of complaints to the EEOC stem from invasion of privacy, discrimination against minorities and irrelevance to the job.

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Testing Job Applicants is Worth More Than the Legal Risk

Many small businesses tend to shy away from pre-employment testing, under the advice of their attorneys. The main argument is that organizations that have used tests have been sued.

But per Ira S. Wolfe, founder of Success Performance Solutions and author of Perfect Labor Storm 2.0, it is also true that more businesses have been sued because they didn’t use testing. Every hiring decision carries a risk. But you need to know the facts:

In 2007, the EEOC heard 77,000 discrimination complaints.
Of those 77,000, only 304 involved pre-employment assessments.
Of those 304 complaints related to assessments, the decisions that ruled in favor of the employee were related to the improper use of the assessment, not to the validity of the assessment itself.
Says Wolfe: “As long as the test is valid, reliable, non-discriminatory AND job-related, the use of pre-employment tests is a best practice that meets EEOC guidelines. If your attorney can’t substantiate why he/she believes pre-employment tests should be avoided with any- thing more than it’s his/her opinion, get a second opinion.”

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Compliance of the Recru-Tec Test with E.E.O.C. Regulations

1. Our assessment does not discriminate applicants based on race, nationality, religion, gender, ethnicity or other background factor.
2. VERY IMPORTANT: Once you have decided to adopt the Recru-Tec Test to evaluate applicants, you should use it standardly on ALL your pre-selected applicants who passed the first interview. Doing otherwise could open the door to discrimination.
3. The test was entirely developed for job-related-only applications. It des not investigate private matters and other non-professional issues.
4. We recognize that the Recru-Tec Test (or any other test) is not and “ultimate weapon.” It can potentially increase the quality of hiring, assuming you make testing part of a well-designed and well-managed hiring process.
5. We always recommend that you “test the test” on your best employees. This will give you a better understanding of how a specific test functions and its limits.
6. We always recommend that you question unexpected test results and take it up with the applicant. Most applicants will have something to say about bad results, which is often the most interesting part of testing.
7. Tests can be faked. Some applicants do not hesitate to find out about specific popular tests and will even train to pass them. The best test is to have someone in your company “test the test.” If it does not pass that test, do not use it.
8. Inform applicants that their test results might be discussed in case they are selected as finalists. Make them feel relaxed about it and always clearly state that a hiring decision is never made based on test results only.
9. Per applicable laws related to privacy and specifically per the E.E.O.A. in the USA (Equal Employment Opportunity Act), no candidate can be forced to fill a productivity or personality test for selection purposes. Also, anyone filling a test for selection purposes has a right to have access to the provided information. We always recommend out client to discuss the test results with candidates.
10. To protect your company from potential legal retaliation initiated by a disgruntled applicant, we strongly recommend that you use a waiver – standard form to present to candidates who fill the test.