Are Pre-Employment Tests Legal? An Employer’s Guide

Finding good employees isn’t always easy. It’s possible to narrow the search and boost your chances of finding a qualified worker through pre-employment testing. Federal anti-discrimination laws like the Americans with Disabilities Act (ADA) and rules enforced by the Equal Employment Opportunity Commission​ (EEOC) set strict guidelines for using these tests. Employers and hiring managers must ensure their hiring process does not disadvantage applicants based on race, disability, religion, national origin, or other protected characteristics.

This guide provides an overview of the different types of pre-employment tests and the legal rules business owners must follow. For guidance tailored to your unique small business needs, consider speaking with a local employment law attorney.

Common Types of Pre-Employment Tests

As long as you keep legal restrictions in mind, pre-employment assessments can be a helpful part of the hiring process. However, each type of test comes with its own set of rules and potential risks.

Aptitude Tests

These tests measure cognitive skills like problem-solving, critical reasoning, and decision-making. Aptitude tests can predict job performance for a new hire, but they measure ability in isolation and don’t assess personality or teamwork skills.

Cognitive ability tests are generally permitted before or after a job offer. However, you must ensure they don’t unintentionally screen out members of a protected group (see “Disparate Impact” below).

Job Skills Tests

A skills assessment test analyzes a job candidate’s specific knowledge and ability for a role. This is useful when you need to fill a position in a demanding or niche area, like technology or a skilled trade. These tests evaluate two types of skills:

• Hard skills are specific, teachable competencies like coding or copywriting
• Soft skills are non-technical traits essential for a position, such as leadership, time management, or attention to detail

Skills tests are typically allowed before tendering a job offer. The skills being tested must be essential to performing the job listed in your job descriptions.

Personality Tests

Personality assessments claim to measure behavioral factors and personality traits to help find a candidate who fits the company culture. While popular, their results can be unreliable, as some have “correct” answers that are easy to guess.

This is a high-risk area. Under the ADA, you can’t conduct a medical exam before making a job offer. If a personality test is designed to or has the effect of identifying a mental health condition or psychological disorder, it could be considered an illegal pre-offer medical exam. Use these tests with extreme caution.

Integrity Tests

Employers use integrity tests to screen for honesty and trustworthiness. While a dishonest applicant is unlikely to answer truthfully, these tests can still flag strange or unusual responses for further review during an interview. While permissible, they shouldn’t include questions that violate medical privacy or other protected rights.

Physical Ability Tests

Physical agility tests measure a candidate’s physical abilities, such as strength, stamina, and coordination. Employers often use them for physically demanding roles like warehouse workers or police officers.

Because the EEOC may consider physical assessment tests medical exams, employers should administer them only after making a conditional job offer. To be legal, the test must be directly related to essential job functions and required for all new hires in the same role. They also carry a high risk of creating a disparate impact on the basis of age, sex, or disability.

Key Legal Hazards in Testing

No matter the test, two major legal principles apply: avoiding disparate impact and providing reasonable accommodations. Let’s take a closer look at what these are.

Disparate Impact

Disparate impact happens when a test seems fair on the surface but ends up discriminating against a particular group. For example, if a strength test for an office job screens out more women than men, it could have a disparate impact if that level of strength isn’t required for the job. You can use a test with a disparate impact only if the skills it measures are absolutely necessary for the job, like a vision test for a pilot.

Reasonable Accommodation

Under the ADA, employers must not screen out qualified applicants with disabilities. You must provide “reasonable accommodations” to allow disabled applicants to complete a test, such as offering a computer version with a larger font.

Timing Is Key: Pre-Offer vs. Post-Offer Testing

Test timing is critical. Some tests are allowed before a job offer, while others are only permitted after you’ve made a conditional offer of employment. Using the wrong test at the wrong time can lead to legal issues.

When Certain Pre-Employment Tests Are Permitted

Drug Testing

Under federal law, employers may test for illegal drug use, as this is not considered a medical exam under the ADA. However, the growing legalization of marijuana at the state level has created a complex legal landscape.

While marijuana remains illegal federally as of August 2026, an increasing number of states and cities now prohibit employers from testing for THC or making hiring decisions based on a positive test, particularly for non-safety-sensitive positions. Because rules are changing quickly and vary by location, check your state and local laws before implementing any drug testing policy.

What Employment Tests are Prohibited?

While many tests are allowed if administered correctly, some types of screening are almost always illegal for private employers. Here are a few to be wary of using.

Polygraph Exams

The Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detector tests for pre-employment screening or during employment. Limited exemptions exist for some government agencies and certain security-related industries. You must also display EPPA posters​ for employees.

Medical Tests

The ADA bans employers from asking about an applicant’s medical history before making a job offer. After a conditional offer, an employer can require a medical exam only if it is “job-related and consistent with business necessity” and required for all new employees in similar roles. For instance, an airline can require all its pilots to pass a physical exam.

Get Pre-Employment Testing Legal Advice

To avoid violations during the hiring process, choose pre-employment tests that avoid bias or discrimination. This is often easier said than done, as navigating EEOC and ADA rules can be complex. An employment law attorney can help you design a hiring process that is both effective and legally compliant.