Testing Job Candidates: Handle With Care Screening job applicants is a critical step in the hiring process. You want to make certain -- to the extent possible -- that those you hire can perform the tasks and shoulder the responsibilities you assign them. So you review resumes, conduct interviews, call previous employers and check references. What else can you do? Many companies test job applicants to gauge their capabilities -- ranging from typing skills to management aptitude. But along with the benefits of testing comes some risk. Proceed With Caution As long as a test accurately measures a candidate’s ability to perform essential job functions -- and doesn’t discriminate against minorities or other protected-class members -- administering a test can be relatively risk-free. For example, most cognitive tests that measure reading comprehension or math skills are usually low-risk. But if you test one candidate for a job, you must test all. On the other hand, giving a psychological test can be dicey. Exams that try to evaluate personality or measure integrity -- and in some states tests that unduly invade privacy -- generally pose the greatest risk of a lawsuit if you use them to weed out unqualified candidates. Tests that illegally discriminate are more than risky -- they’re almost guaranteed to land you in court. For example, you wouldn’t want to use a test that weeds out applicants on the basis of ethnic background, age or gender. Here’s how the three main areas of testing risk shape up. Disparate impact. Plaintiffs often base legal challenges to job testing on Title VII of the 1991 Civil Rights Act. If you use a test that consistently and disproportionately rejects members of a protected class -- such as ethnic minorities, seniors or women -- the test can be said to affect different groups disparately and may be unlawful. Experts often win in court by using sophisticated statistical methods to demonstrate discrimination under the disparate-impact theory. Disabilities. Any test that identifies an applicant as mentally or physically impaired could raise issues under the Americans With Disabilities Act. But you may administer these tests after you hire an applicant. Privacy. Some psychological exams, such as those that try to measure a person’s emotional maturity or judgment skills, may violate a job candidate’s right to privacy under some state laws. Tests that measure emotional stability tend to be more appropriate in positions that involve security or carrying a weapon. Reduce Risk If you don’t want to abandon the testing methods that work for your business, take these steps to minimize legal liability: o Review your screening tests to determine whether they accurately measure skills or traits necessary for success in your company. o Explore other recruiting techniques -- such as more thorough interviews -- that might just as effectively assess the same skills or traits. o Customize your tests to measure potential performance on the specific jobs for which applicants apply. Avoid using commercially marketed, “off-the-shelf” tests without reviewing them to determine how effectively they will serve your company or department. o Before you test any job applicant, ask an attorney experienced in employment law to review your tests. And those administering tests must refrain from trying to elicit illegal behavior. Tests Can Be Constructive Using tests to screen job applicants can be both constructive and lawful, and help you match the best candidate for the job. To be safe, let us review not only your tests before you use them, but also questions asked during interviews. Contact | Legal Disclaimer