Is Pre-Employment Testing Legal?

A candidate completing pre-employment testing.

Resumes, phone screens, and interviews are all great for getting to know your candidates. But many recruiters and hiring managers would like to have more assurance that their top applicants have what it takes to do the job well. That’s why many employers turn to pre-employment testing.

While these tests can shed light on many types of candidate skills and attributes, recruiters should use caution when selecting and implementing a test. Here’s what you need to know.

Types of Pre-Hire Testing

According to the U.S. Equal Employment Opportunity Commission (EEOC), any employment requirement set by an employer is considered a “test.” Common screening methods test one or more of the following:

  • Work skills: Assess ability to perform job-related tasks, like proficiency with certain software, writing, and customer relations
  • Cognitive ability: Measure reasoning, memory, and other strengths related to intelligence
  • Emotional intelligence: Evaluate the ability to understand one’s own emotions and those of others
  • Language proficiency: Evaluate fluency in a language required for the position
  • Personality: Assess traits or dispositions
  • Knowledge: Often evaluates for technical expertise
  • Physical ability: Measures the ability to perform tasks that require strength and stamina
  • Drug use: Test for the recent use of illegal drugs or current alcohol intoxication

Employers interested in implementing a testing procedure must first determine the attributes that are necessary for the job and then select a test that adequately measures those attributes.

Legal Considerations Regarding Pre-Hire Testing

Not all pre-employment tests are created equal. Before you decide to use pre-employment testing, make sure the tests are going to help you hire better. You especially want to avoid any tests that could violate federal, state, or local anti-discrimination laws. Forbes outlines two legal pitfalls to be aware of before implementing a testing program:

  • Validity: Make sure the test measures what you want it to and that what you’re testing is related to the position you’re filling.
  • Reliability: The test should consistently measure the traits you’re testing.

If the test you use has an adverse impact on any group regarding race, sex, color, religion, national origin, or any other protected status, it may be considered discriminatory, unless it complies with the EEOC’s guidelines for employee selection procedures. And that’s just federal law. There are additional laws related to the timing of certain tests, like medical examinations. As with any decision rife with legal implications, it’s always best to consult an attorney.

Selecting and Monitoring Pre-Employment Testing Procedures

Due to all the legal implications, you don’t want to use any old test, just because it has the word “pre-employment” in it. Once you’ve determined your hiring requirements, look for tests that have been validated. One entity that reviews commercially available tests for validation is the Buros Center for Testing. They publish the “Mental Measurements Yearbook” which is widely accepted as a reliable tool for test selection.

To help ensure that your organization is in compliance with all anti-discrimination laws and regulations, keep track of how you use any validated, pre-employment testing methods. Keep records of the candidates who complete your pre-hire tests and of the results of those tests. If you spot a disparate impact on a protected class of candidates, let your legal department know so they can more closely examine and handle any compliance issues.

Recruit Top Talent

Whether or not you use pre-employment testing, the hiring process starts with finding quality candidates. Reach top talent quickly with a free job posting on Monster.

Legal Disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.