Magazine article Workforce

A Legal Examination of Testing

Magazine article Workforce

A Legal Examination of Testing

Article excerpt

Legal Insight

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. …

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