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A Legal Examination of Testing

May 21, 2002
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Pre-employment testing seems like a pretty smart idea. Personality and aptitude tests offer useful insights into whether the person sitting across the desk from you will be a good fit with the company -- and be able to do the job. But tests aren’t infallible. Improperly handled, they can leave your company vulnerable to lawsuits. Teresa Butler, a partner in the Atlanta office of Littler Mendelson, offers this examination of testing.

What is the first area of concern in testing?
First of all, aptitude testing is almost in a different bucket than personality testing. If you’re literally just testing the person on what they’re going to be required to do in the job, you’re fine. The personality testing is always more of a gray area. A lot of the personality tests were developed as assessment tools for the purpose of assisting people in what they should choose for their careers, or if they’re in counseling, how they might adjust the way they communicate or perceive others. They weren’t necessarily meant for employers to use in deciding how to slot people. Of course, some are developed and marketed that way because there’s a lot of money to be made. I can’t express a professional opinion on whether or not they work; I can only say they’re easily subject to legal challenge.
What should employers watch out for?
First and foremost from a legal standpoint, you have to make sure that the entity providing the testing has gone through the EEOC validation procedures. That means whatever you’re measuring has to be job related -- that’s important under Title VII standards. Second, the test has to [work] without having a disparate impact on minorities, females, people with backgrounds or characteristics protected under the law. If it does have a disparate impact (meaning that minorities or women don’t perform as well or have results as positive as white males), you need to have a compelling reason why, which typically you’re not going to have.
How can a test have a disparate impact on women and minorities?
The language used in the tests can lead to disparate impact [because] individuals with different cultures, backgrounds, education, national origins might interpret that language differently. That’s when you get into issues that can be very thorny in terms of litigation. People can easily challenge these tests in that fashion. Then the employer and the testing entity must defend the testing tool and show what procedures they went through to ensure that it meets those two EEOC guidelines I mentioned before.
In a disparate-impact case, does the employer become co-defendant with the test provider?
In a discrimination suit, it’s going to be just the employer, because that’s the only party that can legitimately be sued under Title VII. Under federal and most state laws, you’re only going to be able to sue the employer or prospective employer.
An invasion-of-privacy claim is also a possibility with these tests. How?
It’s been a while since I’ve seen a test that really concerned me on this point, but I’ve seen tests where the questions can be very personal and very embarrassing for a person to answer. For instance, what their dreams are or what their sexual preferences are and what they think about certain kinds of sexual practices and what their religious beliefs are. The argument of most of the testing tools that provide that kind of questioning is that specific answers to specific questions are not going to be provided to the employer.
But it’s still a problem?
Arguably the testee still has a cause of action, because the company is requiring the individual to respond to very personal questions if they want the promotion or want the job. It’s also possible that the result of the test might reveal how you answered certain questions. Again, it depends on the quality of the tool. A good-quality testing tool a) will not ask incredibly offensive questions and b) would not reveal through the results how people answered specific questions. I’ve seen personality tests that ask questions related to ethical judgments -- those are fine. The problem is when you’re getting into the types of assessment tools that might be used by a psychologist to evaluate a patient. To require people to answer such potentially offensive questions, even if the employer is not going to see it, I think can lead to real trouble.
Legally speaking, how much weight should HR place on test results?
Certainly an employer should not rely solely on a test. It should just be part of the overall review of a person and used to corroborate other information that you have about the individual. It should not be the driving force. It’s good to be able to show that in every hiring case, testing was only a factor in hiring, that the employer always had other information that made that person the more qualified individual. Because if it is the deciding factor and that happens frequently enough, you could get yourself in trouble.
If a test reveals that the candidate may be emotionally unstable, but you hire the person anyway, and he or she becomes violent in the workplace -- is the company then liable?
If you have test results that indicate this person had anger-management problems, then certainly that can be used against you. It wouldn’t be a slam dunk, but it would certainly stack up as potential evidence that the employer had reason to know this individual had a tendency toward violent behavior. With testing, you need to think about what you’re asking for and whether you really want the information. If you’re getting the information, you’re going to need to use it. If you have adverse information about the individual that might indicate they could cause harm to others and you hire them anyway, then the fact that you received that information could become an issue.
What should HR look for in a test?
Finding a good test is like hiring a lawyer. You need to check on the qualifications and credentials. It’s a good idea to get references from other employers on how the test worked, and also any legal challenges they might have received. You should ask the testing entity too -- has this been legally challenged anywhere, and if so, what was the outcome? Employers need to thoroughly check out the testing entity. Don’t just look at the glossy brochure and get all impressed with how pretty it looks; ask questions. Any reputable testing entity would welcome this and be ready to answer those kinds of questions. It’s even better if they proactively discuss the EEOC validation procedures and whether their product has been legally challenged, because that shows they know what they’re doing and know the issues and have handled them effectively.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce, June 2002, pp. 92-94 -- Subscribe Now!

Copyright 2002 Marc Tyler Nobleman

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