Legal challenges have also been successful where assessment tools venture into areas of questioning which are not job-related or which elicit information concerning sex, race, age and other subject areas protected by the EEOC.
Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington are among the states which have extended to job applicants the same rights involving constitutional issues of privacy which protect employees.
Aptitude and personality tests which are free from discriminatory content and are job-related have fared better in litigation. However, legal challenges can also be raised based on problems with how testing is administered within a given business. To minimize risks, consider the following issues:
- Use established assessment instruments which have already cleared legal challenges.
- Avoid reliance on any single tool to evaluate applicants if you can base your decision on many factors, including telephone and personal interviews, resumes and applications, references, work samples, etc.
- Get advice from the experts on the best way to approach different levels of testing within your organization, for example for exempt, non-exempt and different types of positions (sales, management, etc).
- Document the testing process and information concerning the product you select. Include information on the validity coefficients and independent research on EEOC compliance.
- Within each category of applicants or employees being tested, communicate clearly and consistently why, how, when and for what purpose the testing is being administered.
- Guard against mishandling of test results which may expose your company to risks involving privacy issues. Consider the routing and handling of tests and evaluations, particularly via mail and fax, within your office and among your staff.
- Track results within your organization to determine effectiveness of assessment tools. This will minimize the risk of a legal challenge on the grounds that the testing does not reliably predict performance.
- Consult an employment law attorney to review issues of concern for your specific business.