Is Employment Testing Legal?

Is it lawful to use a pre-employment test in the hiring process?

When can employment testing be considered illegal?

Employment laws on testing and screening seek to prevent discrimination based on race, color, sex, national origin, religion, disability, or older age. While that seems straightforward, the nuances can lead you into trouble if you do not understand how employment testing must be designed and administered. Your program could be declared illegal if you run afoul of key prohibitions:

• Disparate treatment: If you administer a test to members of a protected class, but not to others, you are treating them differently, which is illegal.
• Disparate impact: If a test is not relevant to the job, but is designed to weed out people from a protected class, it is illegal.
• Timing of questioning: Asking about a disability is only allowable after a conditional job offer is extended and only if the disability is relevant to the job.

In summary, employment tests must be:

• Job-related. Tests must be relevant to the job and the kind of work to be done.
• Fair and unbiased. The same test must be given in the same manner to all candidates.
• Validated. Tests must be approved to show that they measure potential job performance accurately.
• Confidential. The results should not be used for any other purpose than employment decisions and should be kept private.
• Compliant with laws. Employment testing must comply with applicable civil rights laws, the Americans with Disabilities Act, and age discrimination laws.

Common types of pre-employment tests and their legal status

Let’s take a look at four types of employment tests that are commonly used, as well as some links to resources for further review.

Are skills and aptitude tests legal?

Aptitude and skill tests are one of the main types of pre-employment testing. Testing an applicant’s knowledge of a particular subject that pertains to the job for which they’re being considered is perfectly legal and, when applied properly, can be a valuable hiring tool.

However, be sure to consider the following before administering any of these tests:

1. Be sure the test is “professionally” developed.
   Hire Success^® Online Aptitude Tests have been professionally developed by one of our consultants who has a Doctorate in Education. If you’re considering using other tests, ask for the credentials of the person who developed the test.

   You can read more in the link below about a Supreme Court decision requiring aptitude and IQ tests to be “professionally” developed (see GRIGGS v. DUKE POWER.)

2. Make sure all questions on the test are applicable to the job.
   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 questions.

   For example, if a sales skills assessment combines questions about “retail” sales and “outside” sales, and 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 the outside sales position. Otherwise, you run the risk of violating pre-employment testing laws and a candidate who did not get the position could have a legal basis on which to sue for discrimination.

   Seek the advice of your legal counsel if you have questions, before administering this type of test.

3. Test ALL applicants and/or employees.
   All applicants for a job should be tested in order to give everyone an equal opportunity to demonstrate their abilities. Testing only the few you’ve selected for final interviews could be considered discriminatory. If your reason for testing only a few applicants is to save money, remember that the price of the Hire Success^® pre-employment testing system is extremely low, making it affordable to test all applicants.

→ Test aptitude
→ Assess job skills

Are IQ tests legal for employment testing?

Is it appropriate to give an IQ test as part of a job interview? It can be, but you may find that a professionally developed aptitude test does a better job of demonstrating a person’s ability and skills. Plus, with aptitude tests, it’s easier to demonstrate how and why the test is relevant and applicable to the job you’re hiring for.

Examples of legal issues with IQ testing

Many companies rely on using an IQ test that has not been professionally developed for employment, and they have not demonstrated that only people with an IQ above a certain level can be successful in the job.

Before administering any IQ test, you should make sure your legal counsel reviews the test, you know who developed it, you understand how it’s being applied, and you know how the results will be used to screen candidates to ensure you don’t violate any pre-employment testing laws.

Overall, the main issue when administering an IQ test for employment is the defensibility of the "threshold" you set for hire/not-hire.

For example, if you state that an applicant must have an IQ of 108, can you demonstrate how an applicant with an IQ of 107 is not capable of doing the job, but a person with an IQ of 108 has what it takes to succeed? It would be extremely difficult. This is one important reason why many companies will not use an IQ test for employment.

Are personality tests legal for hiring?

Personality tests are legal when properly used as part of a hiring process. In fact, they are an essential tool in the processes of employee selection and employee development. A personality profile test is truly a decision support tool that’s as essential as a resumé.

Are personality tests legal? Yes, but just as with aptitude tests, legality of personality tests in the workplace involves understanding which traits are both applicable to the job and can be shown to make a difference in a particular job for which the applicant or employee is being considered.

Examples of cases when personality tests may be illegal

Significant case law addresses the legality of personality tests in the workplace. You will need to prove the personality traits you are testing for are relevant to job performance. For example, testing for persuasiveness makes sense for a sales role, but not for custodial candidates. It is illegal to use personality testing to screen out protected groups and people with disabilities.

Furthermore, personality tests cannot be used as the sole factor in making a hiring decision. Lastly, some states impose additional restrictions, so it is important to talk to your legal counsel.

Is it illegal to give job candidates integrity tests?

Integrity tests are not illegal if used properly. When professionally developed and fairly administered, integrity tests are not discriminatory. When employees have access to cash, trade secrets, and sensitive systems and data, these kinds of tests are highly recommended to help ensure you are hiring people who can be trusted.

Potential legal concerns with integrity testing

Integrity tests need to be designed to avoid getting into illegal topics. Invasive questions about a candidate’s personal life are out of bounds, as are questions about mental health and medical conditions.

Do not ask about religion, politics, or sexual orientation. You cannot ask about financial and credit history, general criminal history, or drug and alcohol use. Carefully worded questions can give you insights into these areas without running counter to legal restrictions.

Additionally, you should not rely exclusively on integrity tests when making any hiring decision. Check with every past employer, as well as every educational institution listed on a resumé, and do a criminal background check. Drug testing is generally legal and other types of pre-employment testing should also be considered as screening tools to help give you a more accurate picture of your candidate’s potential for success.

Federal and state laws regarding pre-employment testing

Pre-employment testing is covered by numerous federal and state laws, including:

• Civil Rights Act: Your tests cannot discriminate against candidates for their race, skin color, religion, sexual orientation, or nation of origin.
• Americans with Disabilities Act: Your tests must be accessible to people, regardless of their disadvantages and disabilities, and must not discriminate against them.
• Age Discrimination in Employment Act: You cannot discriminate against candidates based on their age.
• Employee Polygraph Protection Act: Employers cannot routinely use polygraph tests unless candidates are applying for a sensitive job in defense, intelligence, or counterterrorism. Security firms and pharmaceutical companies may use a polygraph in select circumstances.
• Uniform Guidelines on Employee Selection Procedures: These are regulations that specify when and how employment tests should be used.
• Equal Employment Opportunity Commission: These regulations are numerous and have the force of law behind them.

Other resources on the legality of pre-employment tests

Below are some additional links you’ll want to review that will help you better prepare to ask the right questions of your legal counsel and gain a better understanding of pre-employment testing laws.

• Facts about “validation”: One of the most misunderstood aspects of pre-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^® pre-employment testing system is fully compliant with EEOC, ADA, ADEA, and other pre-employment testing laws and regulations. Read the opinion letter from the Law Firm of Lewis and Wagner regarding the Hire Success^® Personality Profile.
• 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:
  • GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971)
  • WATSON v. FORT WORTH BANK & TRUST, 487 U.S. 977 (1988)
  • WARDS COVE PACKING CO. v. ANTONIO, 490 U.S. 642 (1989)

• Use of video applications and interviews: Some companies have considered options using online video interviews and 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.

  EEOC Guidelines 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.”