Is Employment Testing Legal?

Is Employment Testing Legal?

Yes. However, the ‘yes’ must be qualified: Employment testing is legal as long as a professionally-developed employment test is administered according to the test developer’s intended use that— that is, testing the potential employee only on topics that are directly related to the job.

For example, it’s perfectly legal to give accounting applicants a math test; however, it could be considered a discriminatory practice to screen custodial employees using the same math test, because math competency for an accountant is very different than for a custodian.

Therefore, when asking, “Is employment testing legal?” it’s important to remember that it isn’t the test itself that’s legal or illegal -- it’s the application of the test that matters!

4 Common Types of Pre-Employment Tests

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.

Legality of Aptitude Tests for Hiring

Aptitude 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.

Be sure to consider the following, however, before administering any aptitude test:

  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 links below about a Supreme Court decision requiring aptitude and I.Q. 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 question(s).

    For example, if a Sales Aptitude Test 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 Hire Success® tests is extremely low, making it affordable to test all applicants.

Legality of I.Q. Tests for Hiring

Are I.Q. tests legal for employment? They 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.

Many companies rely on using an I.Q. test for employment that has not been professionally developed, and they have not demonstrated that only people with an I.Q. above 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, you know who developed it, you understand how it’s being applied and 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 I.Q. test for employment is, how can the "threshold" you set for hire/not-hire be defended?

For example, if you state that an applicant must have an I.Q. of 108, can you demonstrate how an applicant or employee with an I.Q. of 107 is not capable of doing the job but a person with an I.Q. 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 I.Q. test for employment.

Legality of Personality Tests for Hiring

Personality tests can be 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 resume. While a resume tells you about an applicant’s work history and accomplishments, a personality test will help put this information in perspective.

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.

How you use the information you obtain from a personality test will generally determine if you’re applying this in a legal manner. For instance, if you use a trait like “persuasiveness” to screen both sales and custodial candidates (using extreme examples for illustration), it’s obvious that a sales professional must be persuasive, but it’s unlikely that the custodian has to persuade others in order to be a good custodian.

Obviously, education, experience and other factors are equally important, but why would you 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?

Discovering these “success” traits is a process we call Developing Baselines. Developing a baseline is not complicated – you simply 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, these key success factors can make a significant difference in how an employee performs in the job.

If you still have questions about the legality of personality tests in the workplace, we urge you to speak with your legal counsel.

Legality of Integrity Tests for Hiring

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’s important that employers equally test each applicant who could have unsupervised access to cash, inventory or trade secrets once hired.

It is strongly recommended that you do not rely exclusively on integrity tests alone when making any hiring decision. You should check with every past employer, as well as every educational institution listed on a resume, and do a criminal background check. Other types of pre-employment testing – such as 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 advice: Conduct your own baseline studies for the various jobs in your company before hiring or promoting employees, use common sense in how you apply any personality or other employment testing information and discuss options with your legal counsel before using any testing.

Other Resources on the Legality of Pre-Employment Tests

Here 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 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 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:

  1. GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971)
  2. WATSON v. FORT WORTH BANK & TRUST, 487 U.S. 977 (1988)
  3. 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/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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