Pre-employment testing

Scope

Employers use pre-employment testing to analyze a job candidate’s skills.

Regulatory citations

• None

Key definitions

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Summary of requirements

Pre-employment tests can be performed before an offer of employment is made. (Only medical tests or exams must be conducted post-offer).

Some organizations hesitate to conduct pre-employment tests because of potential liability issues (i.e., because of equal employment opportunity concerns regarding discrimination). Some tests may, in fact, have a discriminatory impact on certain groups or minorities, so it’s important to be sure tests are validated before they are used.

Pre-employment tests must be:

• Job-related,
• Reliable,
• A valid predictor of job performance, and
• Non-discriminatory.

Types of pre-employment tests. There are many types of pre-employment tests. Employers may want to use several in a battery of tests for a specific position, depending on the skills and attributes that are necessary for a particular job. For example, a math test would be appropriate for an accountant; a personality test might be appropriate to determine if someone has the right people skills for a job in sales or customer service. The following are some of the types of tests an employer may want to consider:

• Skills tests. These tests are used to measure skills an applicant already has, such as a math test or typing test. Often these types of tests are performed using a simulated work task or assignment.
• Aptitude tests. Aptitude tests measure a person’s ability in certain areas, such as interpreting numerical data, verbal comprehension, abstract reasoning, spatial and mechanical ability, and so on. These tests measure a candidate’s ability to acquire a skill or perform a particular type of job.
• Personality tests. These tests measure behavior patterns of candidates to find out how they will react to the work setting or various situations that may arise in the course of performing the job. For example, a customer service representative should enjoy working with people and be able to counter a high stress situation with a calm demeanor.
• Intelligence tests. These tests measure intelligence, or IQ. They measure an individual’s mental skills in a variety of areas.
• Functional capacity tests/physical ability tests. These tests place the candidate in an environment where the exact physical skills the person will need on the job are tested. An example is having the individual lift 30-pound boxes and put them on a shelf four feet high over a period of time, to mimic what the individual would actually do on the job. Another example would be to test a candidate’s manual dexterity to see if he or she could perform the required work on a production line.
• English (or other language) proficiency tests. These tests measure an individual’s mastery of a particular language. They may measure an individual’s comprehension of the written language as well as the individual’s ability to speak and understand the language. Such tests should only be used when language proficiency is a requirement of the job.
• Drug and alcohol tests. Pre-employment drug tests are often given to candidates to determine their fitness for the position — i.e., to be sure that they are not under the influence of illegal drugs. Pre-employment alcohol tests are not as commonly used. Many states regulate drug and alcohol testing, so state laws should be consulted to determine the legality of such tests. Although drug tests are not considered “medical information” under the Americans with Disabilities Act and are therefore not subject to the same privacy rules as are required for medical information, drug test results are considered confidential, and should be treated accordingly.
• Polygraph tests. These are generally prohibited from pre-employment (and employment) testing, under the Employee Polygraph Protection Act (EPPA) and state law. However, they may be used under certain limited circumstances (for instance, employers who provide security services can give polygraph tests to certain prospective employees). More information can be found in the EPPA topic.

Legal issues with testing. To help avoid adverse impact in selection procedures, employers should consult the Uniform Guidelines on Employee Selection Procedures. The Uniform Guidelines were written to help employers, labor unions, employment agencies, and others to determine whether tests and other selection procedures comply with the laws enforced by the Equal Employment Opportunity Commission (EEOC), the Department of Labor, and other agencies. The purpose is to have a single set of principles (and avoid conflict between the different agencies’ requirements) to determine the proper use of selection procedures.

The Guidelines cover all types of employee selection procedures, not just testing. Other selection procedures include hiring, retention, promotion, transfer, demotion, dismissal, and referral. The Guidelines cover a full range of selection procedures including job requirements, evaluations based on application forms, interviews, training program performance or probationary periods, and other procedures.

Adverse impact. When conducting pre-employment testing, it is important that the testing does not disproportionately exclude members of a protected group. Examples of practices found by EEOC and/or courts to have an adverse impact include:

• Minimum height requirements. These have been found by numerous courts to disproportionately screen out women and people of various national origins, such as Hispanics and Asians.
• Certain educational requirements. Educational requirements, such as requirements that employees have a high school diploma, have been found in some cases to have an adverse impact on certain protected groups when they are not necessary for the job.
• Physical agility tests. Tests that measure physical agility can have an adverse impact on women.
• Cognitive ability tests. Cognitive ability tests can have an adverse impact on certain protected groups.

Guidelines adopted by the EEOC and other federal agencies require that employers keep records to determine whether selection procedures for each job have an adverse impact.

Justification for adverse impact. An employment practice found to have an adverse impact is not automatically invalidated. Rather, the employer has an opportunity to prove that the policy is “job related and consistent with business necessity.”

The meaning of this language is being developed in the courts. What an employer has to show depends on the particular facts of each case, including the nature of the practice and the functions of the job for which the practice is used as a selection standard. EEOC’s guidelines provide that tests and other scored selection procedures should be validated — in other words, analyzed under various technical standards to assess whether they accurately measure skills that are necessary for job performance.