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Monday, April 12, 2021

Pre-employment testing: one size does not fit all

In today’s market, it is imperative for employees to operate quickly and efficiently. Erratic performance and turnover have a tremendous impact on the bottom line so employers are increasingly looking for “fit” when hiring. One way to assess fit is through pre-employment testing.

In general, pre-employment tests can measure whether potential employees possess certain traits or the likelihood they will engage in those traits. The “trait” is that which the company deems crucial to the success of the business and the employee.

If used properly, pre-employment testing can be a valuable tool for a hiring manager. However, the risks are great so it is important not only to assess the test for negative impact to a protected class, but to continue to assess periodically during its use and modify as needed.

There are numerous types of pre-employment tests. Cognitive tests assess traits such as reasoning, memory and perception, and skills such as math and reading comprehension. Sample job task assessments measure performance and aptitude. Medical and psychological tests measure medical and mental fitness. And, finally, personality tests measure the degree to which a person has certain traits or dispositions, or the likelihood that person will engage in certain behavior.

Pre-employment testing opens the door to action by the Equal Employment Opportunity Commission (EEOC) or Texas’ equivalent, the Texas Workforce Commission. Both agencies look for tests that result in a negative impact on job applicants on the basis of race, color, national origin, religion, age, gender or sex and disability. It is important to note that tests not intended to negatively impact a protected individual still may be illegal. These tests have a “disparate impact,” and the lack of intent to discriminate is not a defense.

In 2008, the Ford Motor Co. paid $8.55 million in monetary relief and $1.6 million in attorney’s fees and expenses because of its cognitive reasoning test. The test had a statistically significant negative effect on minorities. Recently, Target agreed to pay $2.8 million to settle a claim with the EEOC that three of its pre-employment tests disproportionately screened out female and disabled applicants for exempt-level professionals in violation of Title VII and the Americans with Disabilities Act (ADA). In late 2015, a trucking company settled with the EEOC for an undisclosed amount over allegations that its physical strength tests improperly discriminated against women and older applicants.

Personality testing, a popular way to measure work culture fit, is useful, but buyer beware. The ADA prohibits medical examinations before a job offer has been extended. Testing for honesty, work habits or ability to get along with others is not considered a medical test. However, using a test designed to measure overall mental health and not specifically to look for those traits is a medical test and illegal if required pre-offer. Similarly, post-offer medical tests may be improper if they screen out individuals with disabilities, unless the test is shown to be job-related and consistent with business necessity.

Additionally, tests such as English efficiency or comprehension may disproportionately screen out applicants from other countries and therefore violate Title VII’s prohibitions against discrimination based on national origin.

Testing should be used only to measure for traits determined to be critical for success or essential to the job. In order to predict success, employers should keep abreast of changes in minimum job requirements and the actual duties, and they should update the test specifications or selection procedures accordingly. Therefore, an accurate and current job description is crucial.

To minimize legal exposure, employers should purchase or develop tests that are “validated.” Many test providers advertise their tests as validated, but ultimately the liability rests with the employer so it is important to verify the claims. The EEOC provides different ways employers can demonstrate that their employment tests are job-related and consistent with business necessity through its Uniform Guidelines on Employee Selection Procedures. Modeling tests under this guidance may help an employer defend its test. Similarly, employers may also defend themselves by using tests that were “approved” through litigation or those which the EEOC has given its seal of approval.

Monica Narvaez is a shareholder in the Underwood Law Firm’s Fort Worth office. She regularly advises clients on labor and employment law and handles employment litigation before state and federal courts as well as administrative boards. This article is not intended as legal advice. If you seek legal counsel regarding a specific employment law matter, please contact an attorney. www.uwlaw.com

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