Employment Tests: Types, Legality, and Your Rights

Employers have always looked for ways to sort stacks of resumes and job applications into viable job candidates. One method is through employment testing. Some types of tests, such as typing assessments or writing exercises, have existed for decades. Others, like the psychological tests for various personality traits, are of recent origin.

Whether all these tests are legal is another matter. Some may violate your right to privacy or HIPAA laws. Others violate federal anti-discrimination laws. A few seem neutral on their face but violate discrimination laws by having a “disparate impact” on those who took them.

Applicants should be aware of their legal rights to refuse before agreeing to take certain types of pre-employment tests. These testing methods will differ from the way your employer will assess your job performance once you’re an employee.

Types of Employment Tests

There is a wide array of employment tests available, often particular to the industry in which the company operates. The two general categories are pre-employment tests and post-employment tests. Laws limit the types of tests an employer can do to screen out employees before a job offer.

In general, employers cannot administer tests that discriminate against potential workers based on protected categories, which include race, religion, gender, national origin, and age. The Equal Employment Opportunity Commission (EEOC) has a fact sheet that describes best practices for employers and what they cannot ask employees before a conditional job offer.

Human resources professionals and recruiters may use any or all of these tests to prescreen employees prior to referring them to employers. HR professionals must still follow federal and state regulations when administering tests.

Legal Employment Tests

Any employment test must:

• Be job-related
• Be consistent with business necessity
• Cannot disproportionately exclude any member of a protected class

The EEOC’s “80% rule” states that if a test’s selection rate for a protected group is less than 80% of that of the highest group, they must review the test for discriminatory impact. Employers and hiring managers must give these tests to all individuals in the same job category. Let’s take a look at some of the test types available:

Skills and Aptitude Tests

Employers can use job-related skills tests so long as they address a job competency. Typing assessments or computer skills tests are examples of job-related skills testing. Aptitude tests assess problem-solving and decision-making skills. These tests are often seen among recruiters and when employers are considering candidates for promotion.

Employers can use technical skills tests to assess a candidate’s ability for specific job duties, as long as all candidates for a role take them. They cannot use them to screen out certain candidates or “screen in” others.

Physical Fitness and Strength Tests

According to the Americans with Disabilities Act (ADA)in, a position must include notice of certain physical requirements in the job description if they are part of the job. Jobs such as truck driving or airline piloting may include physical standards as part of the job description for safety reasons. Job tests must clearly be related to the job itself.

In EEOC v. Dial Corp., the company used a specific test for entry-level workers, allegedly for safety purposes, which had the effect of excluding female employees from those positions. Although Dial showed that employee injuries had declined since the test was implemented, the EEOC found that the test was more difficult than the job required. Physical ability tests must be connected to the job.

Medical and Health Examinations

Employers cannot ask job applicants about their health or disabilities or require a physical test until after making a job offer. Specific questions about medical conditions may violate HIPAA, the federal law that requires the privacy of medical information. Any

Psychological and Personality Tests

Psychological and personality tests continue to grow in popularity. Common tests include the Minnesota Multiphasic Personality Inventory (MMPI) and the Myers-Briggs Type Indicator. These types of tests broadly screen for the “Big Five” personality traits: openness, conscientiousness, extraversion, agreeableness, and neuroticism. Some HR professionals believe these are good predictors of an individual’s cultural fit and job performance.

Personality assessments must still follow the requirements of any other assessment test. They must be essential for the job, given to all candidates, and cannot discriminate against any candidate.

Cognitive and Intelligence Tests

Cognitive tests have a poor reputation among hiring professionals. Some standardized cognitive ability tests have shown a significant statistical gap between white and minority applicants. This was the basis for the “job-relatedness requirement” in the EEOC’s description.

When carefully screened for validity and lack of bias, cognitive tests are good indicators of a candidate’s problem-solving skills, learning ability, and critical thinking. Specific tests, such as numerical reasoning tests for financial positions, can help screen out candidates in a large pool of job seekers.

If a test is administered properly, it can be a good indicator of an applicant’s logical thinking skills. Of all the test types, these tests are the most vulnerable to challenges of bias and discrimination.

IQ Tests

Although IQ tests are not specifically illegal for employment testing, a number of Supreme Court cases and federal laws make them difficult to administer. The Wechsler Adult Intelligence Scale (WAIS), the typical IQ test for adults, is not designed to assess the kinds of thinking skills required for a specific job role. For valid test results, a trained administrator who understands the protocol must administer the WAIS.

IQ testing must meet the same standards as all other job-related tests. An IQ test must:

• Be a valid predictor of job performance
• Cannot discriminate against a protected class through intent or impact
• Must be essential for the job, and any required tests cannot discriminate

In EEOC v. Ford Motor Co. and United Automobile Workers of America, Ford implemented a number of cognitive tests to assess mechanical aptitude that regularly excluded black workers. An alternative testing method was available, but Ford did not use it. After a class action lawsuit on behalf of the workers, Ford had to switch to the alternate method and pay a significant sum to the affected workers.

Online IQ tests may not meet this standard. IQ testing should be viewed with suspicion when encountered in any employment-related setting.

Drug and Alcohol Testing

Drug testing at work is governed by state and federal laws. Most states permit drug testing only after a conditional job offer. Depending on your state laws, employers may test for different drugs. For instance, California recently limited testing for recreational marijuana use, although testees must disclose their use of marijuana on the weekend.

Under the ADA, substance abuse is a disability if the individual has a history of drug abuse and is undergoing treatment (such as attending AA meetings). Employers cannot ask if you are an addict or if you’re in recovery as a way to screen you out of a job offer. Employers must have a clear drug testing policy for employees, including random and post-accident testing. Jobs that fall under certain federal categories, such as those regulated by the Federal Motor Carrier Safety Administration (FMCSA), must follow federal drug testing regulations.

The rights of job-seekers and employees are covered by both state and federal laws. If you suspect that a certain test or practice used in the workplace is discriminatory in nature or is breaking the law in another way, consider speaking with the local EEOC office, a state employment agency, or an experienced local employment law attorney.

Background Checks and Credit Checks

Pre-employment background checks are usually done after a conditional offer of employment. They can also be given for volunteer positions and internships. Background checks require the individual’s consent and must comply with the Fair Credit Reporting Act (FCRA).

A criminal background check can verify your fitness for some positions, as certain types of jobs cannot hire individuals convicted of “crimes of moral turpitude” (theft). Background checks also serve as an integrity test, as they confirm your resume and answers to interview questions. Some states have implemented “ban the box” laws, which prohibit asking about criminal histories until after an offer of employment. Unless your record has been expunged or sealed, it’s a good idea to check with an attorney about admitting a criminal history.

Credit checks are soft checks only, looking at your history, debt, and recent bankruptcies. In some states, you can only be checked if you’re applying for financial positions. A hard check should send up red flags.

For additional help with pre-employment assessment tests, applications, and skills assessments, visit FindLaw’s Hiring Process Laws and Rights section for more information.

Get Legal Advice on Employment Testing

If you have encountered an employment test that didn’t seem quite right or that discriminated against you in some way, it may be time to seek legal advice from an employment law attorney in your area. Many employment laws are state-specific. A legal expert will assess your case, explain your options, and stand with you until it’s resolved.