Will Your Pre-employment Test Pass the Legal Test?



David E. Smith
04/29/2014

The acceptance of testing in the work place has grown from reluctance to almost faddish in the last 30 years. Even as early as 2001, 68 percent of companies reported using various forms of job-skills testing, according to a survey by the American Management Association. That’s not to say that well-developed pre-employment tests aren’t any good. On the contrary, they have the potential to improve the fit between employees and the job, the company culture AND your bottom line.

But aren’t there laws against this?

Well, it depends. The Civil Rights Acts of 1964 and 1991 are the predominate laws that oversee "appropriate" use of pre-employment testing. The basics of these laws are summarized in the federal Uniform Guidelines on Employee Selection Procedures, which includes 13 sections of definitions and detailed information. The Guidelines allow anyone to use any procedure to select candidates (a dart board if you wish) as long as it does not disproportionally screen out protected classes of citizens, such as minorities or females.

So does this mean I can start using any test that looks good to me?

No, not really. If disproportionality does occur, the hiring organization has the responsibility to demonstrate that the test is relevant to the job (Job Relatedness/Validity). The best approach is to prepare for the worst and be delighted when you avoid it. Even the best tests may, at one time or another, result in disproportionate groups being hired. This can become a red flag to the Equal Employment Opportunity Commission (EEOC) should someone complain, or it might be uncovered during a routine audit by the Office of Federal Contract Compliance Programs (OFCCP). Both agencies can require you to produce validity evidence or pay a hefty price.

You have to do your homework.

There are specific steps the Guidelines outline that your organization must take to demonstrate job relatedness. This includes things such as conducting a thorough job analysis, identifying appropriate subject matter experts, or using a pragmatic approach to setting a cut-off (passing) score for the test. Industrial/organizational psychologists, with the proper training, know the procedures well and practice them before implementing any pre-employment test. This is referred to as validating a test. Equally important, the psychologist will leave you with a technical validation report. This is the documentation you need to defend your testing program in court.

But there is another reason for "doing your homework." The Guidelines are good for business. If you follow them, you will have an effective test. They are consistent with professional standards for the development and validation of pre-employment testing. A well-developed pre-employment test will pay for itself many times over.

David E. Smith, Ph.D., is the founder and CEO of EASI·Consult®. EASI·Consultworks with Fortune 500 companies, government agencies, and mid-sized corporations to provide customized Talent Management solutions. EASI Consult’s specialties include individual assessment, online employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about EASI Consult, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.

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