Today I want to talk about the important topic of legal compliance with respect to pre-employment testing. One thing should be made clear upfront. There is a persistent myth that utilizing tests as part of the hiring process increases a company’s legal exposure or somehow entails added legal risk. If you are talking about professionally developed, well validated tests, the opposite is in fact true. The same federal laws that apply to the use of pre-employment tests actually apply to any selection methodologies that you use. There is no extra body of laws that applies only to testing; when using tests you’re bound by the same laws that govern conducting interviews with candidates, checking references, etc. That’s why we believe there are two important reasons that the proper use of testing as a selection tool actually reduces the likelihood of being sued:
First, testing makes the selection process more objective, and fairer for all candidates. Tests are less subjective than interviews, where the personal biases of interviewers are much more likely to lead to discrimination claims. In fact, a recently published study shows that companies are over three times more likely to be sued because of interviews than for their use of aptitude, personality or skills tests. Tests also help you minimize the risk of hiring problem employees, who can often pose a far greater liability risk than tests.
Second, the EEOC stipulates that companies use best reasonable efforts to remove biases from their hiring processes. Using validated tests that do not discriminate according to age, sex, and race, can reduce subjective biases, and inject an objective, reliable data point into the hiring process. This helps with EEOC compliance.
OK, so we’ve cleared up that testing, when done properly, will actually reduce rather than increase your legal exposure related to your hiring practices. Now let’s look at the single most important concept when thinking about legal compliance and pre-employment testing. If you pay attention to this one area, you can be confident that you’re well on the way to a legally defensible testing system. That one thing is the rule of job relatedness. The EEOC’s guidelines surrounding the use of tests are the same as their rules for any selection procedures; the tests must measure job-related skills and abilities. So test selection is critical to legal defensibility. No matter how valid a test is, it won’t be legally defensible if you are using it in an invalid way. For example, a bank teller’s daily work requirements might include adding and subtracting numbers, looking up customer activity, and filling out paperwork. Therefore, using an employment test that measure’s an applicant’s fluency with basic mathematical concepts and ability to read and write would clearly be testing job-related capabilities. On the other hand, using a typing test for a forklift driver who won’t be required to type, is NOT a job-related selection measure. One of the best ways to ensure proper test selection is to do a job requirements analysis that pinpoints the skills and abilities that a job requires. Our HireSelect software has a Job Profiler tool that contains over 1000 such job requirements analyses conducted by the U.S. Department of Labor.
So using well validated tests and making sure the tests you use, as well as all your selection processes, are job-related, is the best way to ensure legal compliance.