Is Employment Testing Legal?

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In a word, “yes”. However, the “yes” must be qualified: as long as a Professionally Developed employment test is administered according to the test developer’s intended use. For example, it is legal to test accounting applicants with a math test, however, it could be considered a discriminatory practice to screen custodial employees with the same math test, as math competency for an accountant is very different than a custodian. It isn’t the test that is “legal” or “illegal”, it is the application of the test that makes the difference!

Aptitude Tests

One type of employment test is the Aptitude Test. Some employers want to test an applicant’s knowledge of a particular subject that pertains to the job for which they are being considered. This is perfectly legal and, when applied properly, can be a valuable tool. Be sure and consider the following, however, before administering any Aptitude or I.Q. test:

  1. Be sure the test is “Professionally” developed. You can read more in the links below about a Supreme Court decision that requires Aptitude and I.Q. tests to be “professionally” developed. (See GRIGGS v. DUKE POWER.) Hire Success™ Online Aptitude Tests have been professionally developed by one of our consultants with a Doctorate Degree in Education. If you are considering other tests, ask for the credentials of the person who developed the test. If you find that a computer programmer or sales manager developed the Math, Spelling, and Vocabulary tests, for example, be very cautious before using such a test.

  2. Make sure that all the questions on the test are applicable to the job for which you are considering hiring the candidate. If some questions are not applicable, be sure to eliminate them from the scoring and do not base a hiring decision on the results of any non-applicable question(s). For example, if a “Sales Aptitude Test” combines questions about “retail” sales and “outside” sales, and assuming you're hiring someone for an outside sales position, you should not base your decision on the outcome of the “retail” questions unless they are applicable to this outside sales position. Otherwise, a candidate who did not get the position could have a legal basis on which to sue for discrimination. Seek the advise of your legal counsel before administering this type of test.

  3. Do not discriminate regarding which applicants or employees you test. All applicants for a job should be tested in order to give all an equal opportunity to demonstrate their abilities. Testing only the few you have selected for final interviews could be considered discriminatory. If your reason for testing only the final few is to save money, the Hire Success™ System is extremely low cost making it affordable to test all applicants.

  4. Beware of I.Q. Tests. Many companies are relying on I.Q. tests that are not professionally developed, and have not demonstrated that only people with an I.Q. over a certain level can be successful in the job. Before administering any I.Q. test, you should make sure your legal counsel reviews the test, who developed it, how it is being applied in your company, and how the results will be used to screen candidates, before you administer even one test to an employee or applicant!

    The main issue you must deal with when administering a pre-employment I.Q. Test is how can the "threshold" you set for hire/not-hire be defended? For example, if you set the I.Q. threshold that an applicant must have an I.Q. of 108, can you demonstrate an applicant or employee with an I.Q. of 107 is not capable of doing the job but the person with the I.Q. of 108 has what it takes to succeed? This is one important reason why many companies will not use I.Q. tests for pre-employment testing.

Personality Testing

Personality tests, like all employment testing, can be an essential tool in the process of employee selection and employee development. It is truly a decision support tool that is as essential as the resume. While the resume tells you about an applicant’s work history and accomplishments, the personality test will help put this information in perspective!

An essential factor in applying a personality test is knowing the various personality traits that are both applicable to the job and can be demonstrated to make a difference in the particular job for which the applicant or employee is being considered. Discovering the “success” traits is a process we call Developing a Baseline. Developing a Baseline is not complicated, you simply need to administer the same personality test to all of your employees in a particular job and evaluate which traits distinguish the best performers from the lowest performers in that particular job. Once identified, seeking new applicants, or employees being considered for promotion, who possess these key success factors can make a significant difference in how the employee performs in the job.

Obviously, education, experience, and other factors are equally important, but you wouldn’t consider hiring an applicant without knowing anything about their education and experience, why would you want to hire someone without knowing just as much about their personality and if they possess the traits you know will contribute to their success with your company?

How you use the information you obtain from a personality test will generally determine if you are applying this in a legal manner. Similar to the example used earlier, if you use traits like “Persuasiveness” to screen both sales and custodial candidates (using extreme examples for illustration), it is obvious that a sales professional must be persuasive, but it is unlikely that the custodian has anyone to persuade in order to be a good custodian.

Integrity Tests

The EEOC, as well as the parallel state human rights agencies, has determined that integrity tests do not have a discriminatory impact on applicants. However, it is important that employers equally test each applicant who might have unsupervised access to cash, inventory, or trade secrets once hired. It is strongly recommended that you do not rely exclusively on just one measure or test in order to make your hiring decision. You should also check with every past employer, every educational institution listed on the résumé, and do a criminal background check. Studies estimate that somewhere between 30-80% of the résumés and applications you receive will contain lies and exaggerations. Aptitude tests that measure an applicant’s knowledge of the job and personality tests that indicate an applicant’s suitability should also be considered as screening tools to help give you a more accurate picture of your candidate’s potential for success.

Our advise: conduct your own Baseline studies for various jobs in your company before hiring or promoting employees into those jobs, use common sense in how you apply any personality or other employment testing information, and discuss the applications with your legal counsel before using any testing. Here are some helpful links you’ll want to follow that will help you better prepare to ask the right questions of your legal counsel.

  • Facts About “Validation” - One of the most misunderstood aspects of employment testing is the issue of validation. This is a must read link.
  • Proper Use Of Employment Testing - Another topic on our validation page, this will give you a direct link if you’re seeking answers on how to begin using employment tests in your company.
  • EEOC and Other Regulatory Compliance - The Hire Success™ System is fully compliant with EEOC, ADA, ADEA and other employment laws and regulations. Read the opinion letter from the Law Firm of Lewis and Wagner regarding the Hire Success Personality Profile.
  • Frequently Asked Questions - Click this link to some of the most frequently asked questions about personality tests, aptitude tests and the Hire Success™ System.
  • Key U.S. Supreme Court Decisions: - Click below to view the United States Supreme Court Decision and Opinion regarding these important cases concerning employment testing:
  • Use Of Video Applications and Interviews - Some companies have considered options using online Video Interviews/Applications. Hire Success does not offer nor provide any option where an Applicant is required to submit a photograph or video response to questions because we believe it violates EEOC Guidelines. Click Here for an EEOC Link which states “Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided. Similarly, employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.”

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