Q. I am looking to hire new employees. Some applicants who did not qualify for the open positions are now threatening to sue, claiming that my pre-employment tests are discriminatory. What should I know about pre-employment tests?
A. Title VII of the Civil Rights Act of 1964 prohibits discrimination in all terms and conditions of employment on the basis of race, color, religion, gender or national origin. Title VII allows for the use of professionally developed screening procedures and tests, as long as they are not intended or used to discriminate.
However, an employer may use a test that has an adverse impact on protected groups if it can show that the test is job-related and consistent with the employer’s business needs. To prove that a test is job-related, it must require test-takers to demonstrate the knowledge, skill or ability to successfully perform the duties of the job, or it must be tied to the tasks required of the position.
Even if the test does not have an adverse impact, employers should evaluate tests to ensure they accomplish legitimate business objectives.
Be wary of test vendor representations regarding adverse impact and validation. Before purchasing a test, understand how the vendor developed and validated the test. It may be worth consulting an industrial psychologist (and your attorney) to evaluate test materials.
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