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Pre-Employment Testing Can Get You Sued

By Brett Snider, Esq. on July 11, 2013 | Last updated on March 21, 2019

Like many business owners, you may be considering implementing some sort of pre-employment test to sift out the best potential candidates from the throngs of applicants.

While these tests may be effective in saving time by cutting down on job interviews, frivolous or careless use in testing may leave your business with more lawsuits than qualified hires.

Disparate Impact of Tests

Title VII of the Civil Rights Act of 1964 prevents employers with 15 employees or more from discriminating on the basis of race, sex, national origin and religion. Even a "neutral" standardized test may be found to violate this federal law.

For example, if your pre-hiring test disproportionately impacts one racial group in your business' hiring, it can be deemed unlawful discrimination unless:

  1. The test is job-related for the position in question, and
  2. There aren't any alternative practices or tests with less disparate impact that still serve your business' needs.

To avoid a discrimination suit, the Equal Employment Opportunity Commission (EEOC) recommends an employer utilize a test that is both "predictive of job success" and not statistically biased against a protected group.

Job 'Aptitude' Testing

All employers want an efficient way to check if their applicants have the required minimum skill level necessary to perform in the open position. But all aptitude tests still need to be valid for the actual position.

The test must be specifically tailored to the position, so that the employer can demonstrate that doing well on the test correlates with doing well on tasks included in the position, reports Forbes.

If your business uses a general test for applicants, one that includes a typing test even for positions with no required typing (e.g., carpenter), then your business may be named in a suit that alleges discrimination under Title VII, and you won't be able to prove the test was job-related.

You can attempt to prevent this by having a validated test that complies with the EEOC's uniform guidelines.

Live Testing

Many interviewers are fans of "live" tests of applicants -- for example, tests in which sales applicants are asked to perform an impromptu job-related task for the employer, reports Forbes.

This may be a good tactic when the task is narrowly tailored to the business, but goofy requests and brainteasers may waste time and be seen as a smokescreen for hiring discrimination.

A business owner should limit any live testing to a reasonable test of skills in context of the business' field or industry.

Bottom Line

Evaluating whether a pre-employment test could get you sued for discrimination may amount to more work and time than the test was supposed to save. For further guidance, consider consulting an experienced employment lawyer near you.

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