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Pre-employment testing: Know the legal limits

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources

THE LAW. Pre-employment tests are an effective tool to discover applicant's skills or abilities that can't be gleaned from an application or interview. And measuring ability and personality can improve your company's productivity, while lowering the chances of work-related accidents and lawsuits.

But such testing does carry some big risks: Unless you demonstrate that you are measuring job-related qualities and that your tests fulfill a business necessity, you could expose your company to a discrimination charge.

Both federal and state laws impose numerous restrictions on testing. In the 1970s, several federal agencies banded together to create uniform guidelines on employee selection procedures. These nonbinding guidelines set standards for test design, validation and security. They still apply today to both government and private-sector employers.

In 1988, the Employee Polygraph Protection Act banned lie detector testing by most private employers.

WHAT'S NEW. Recent legal challenges point to increased scrutiny of employer testing by the courts and the government. Their target: Tests that unfairly screen out qualified minorities, elicit protected private information or reveal protected disabilities.

Example: DuPont Co. had to pay nearly $500,000 in back pay to women who were denied entry-level jobs because of a test that disproportionately rejected qualified women. The company required a written, mechanical aptitude test as part of the hiring process. But a Labor Department review found that there wasn't enough relation between test scores and on-the-job performance.

HOW TO COMPLY. Above all, job tests must have a direct relationship to the job and must meet research standards showing they don't have a "disparate impact" on minorities or other protected classes. In general, a test is considered discriminatory if the pass rate for applicants from a protected group is less than 80 percent of that for the group with the highest selection rate.

Before launching a testing program, ask your company attorney (or an outside employment attorney) to review your procedures. Also, check them against the resources in the box below. Here are other ways to minimize the risk of testing-related legal trouble:

  • Decide what information you hope to gather from the test. Is it directly related to a specific attribute or skill required for the job?
  • Before the exam, obtain an applicant's written consent to be tested.
  • Administer tests consistently.
  • Keep test results confidential.
  • Monitor the impact of your job testing on protected groups.

Bottom line: Understand what every test measures and why you are administering it. If you don't have a rock-solid, job-related reason for the test, scrap it. You need to show that success on the test reliably predicts success on the job. 

Resources: Before you test ...

Along with ensuring that whatever test you administer complies with federal and state laws, tap these resources to set up a lawful testing program:


  • Uniform Guidelines on Employee Selection Procedures are a set of testing standards created by the federal government. Find them at www.eeoc.gov/regs, scroll down and click on regulation 1607. 
  • The General Aptitude Test Battery is a government-developed exam designed to test unskilled or semiskilled workers. It measures nine different occupational aptitudes. Contact your state labor department for details; for a list of state offices, go to www.dol.gov/esa/contacts/state_of.htm. 
  • The National Skill Standards Board, at www.nssb.org or (877) 843-6772, is a government and business-supported effort that developed a national system of skill standards and testing criteria for several industries, including manufacturing, sales and service, hospitality and technology. 
  • The Society for Industrial and Organizational Psychology, at www.siop.org or (419) 353-0032, can refer you to qualified testing services in your region.


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