Legality Issues Supporting the Use of Pre Employment Testing
There are legal trends that strongly support the use
of pre-employment testing. Employers have been forced to
defend an ever increasing number of negligent hiring lawsuits that
seek redress for crimes committed by their own employees.
Those crimes range from rape of a customer in her home by a pizza
delivery driver to assaults, homicides, and theft against co-workers
and customers alike.
The lawsuits contend that the employer negligently
placed an applicant with dangerous propensities, which should have
been easily discovered by reasonably diligent investigation, into an
employment situation where it was foreseeable that the subject
employee posed a threat of injury to others. While employers
cannot safely ask questions like, "How often do you have fits of
uncontrolled homicidal rage?", they can still minimize their
legal exposure through the use of pre-employment assessments.
Pre-employment testing does provide another way to
produce documented evidence that the employer did make a reasonable and prudent
investigation of the applicant's fitness.
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Misinformation Regarding Pre-employment
There has been a lot of misinformation published regarding the
legality of using personality assessments. Unfortunately, many
of those articles were written by attorneys who did not
differentiate between clinically oriented psychological assessments
and pre-employment assessments which were specifically designed and
developed for business and industrial use.
One such four page article appeared in a leading human resources
magazine. One of the hot tips in his article was to ask if the
test had ever been validated by the EEOC and, if so, the positions
to which that validation applies. Test validation does not
mean a government stamp of approval. Validation refers to the
statistical documentation or study that evidences that the
pre-employment assessment does indeed measure what it purports to measure (which is
generally done by or under the direction of the test publisher).
The EEOC does not validate pre-employment assessments nor does the Office of
Federal Contract Compliance. As far as employment assessments are
concerned, the extent of their authority is to audit or investigate
unacceptable procedures when a discrimination charge has resulted
from adverse impact. Their investigation pertains to all
employee selection procedures. There have been very few
disparate impact cases involving pre-employment assessments because
those assessments generally do not have an adverse impact on any
protected group. That does not preclude misuse of an
employment assessment by requiring unreasonably high or restrictive standards
that would not be a bona fide occupational qualification.
One issue that you should be aware of is that test publishers are
not required to defend their assessments or even provide the
necessary evidence to support their validity studies. While
the test publisher would seem to have a professional obligation to
do this, it would be of little value for them to comply if their
validity studies did not meet the generally accepted professional
standards as required by the Uniform Guidelines On Employee
Selections Procedures. Reputable test publishers such as
Candidate Resources, Inc. will provide that information and will also stand
ready to defend their validity studies.
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Legal Issues Regarding Psychological Assessments
Not all assessments are suitable for use as pre-employment
assessments. Specifically, psychological assessments that were
designed for clinical or diagnostic use should not be used.
Certain exceptions do exist for jobs that could endanger the public
safety such as police officers, fire fighters and airline pilots.
All of the cases that I had read involving lawsuit awards have been
cases where a clinically inclined psychological assessment was used.
The courts have consistently ruled against the general use of those
psychological assessments in the business environment.
The use of clinically inclined instruments would also fly in the
face of the Americans With Disabilities Act since they are mainly
designed to diagnose abnormal behavioral patterns. The ADA
states that an employer "shall not conduct a medical
examination or make inquiries as to whether such applicant is an
individual with a disability or as to the nature and severity
of such disability."
Clinically oriented psychological assessments are also invasive
instruments and could open the threat of an invasion of privacy
lawsuit. That was the issue involved in Saroka v. Dayton
Hudson which we will review shortly. Most clinically
oriented psychological assessments are sold only to licensed
psychologist. Your credentials are usually going to be
questioned when you first try to purchase those instruments so I
seriously doubt that many companies are using them by accident.
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Saroka V. Dayton Hudson
A class action invasion-of-privacy and employment discrimination
lawsuit was filed in 1989. The lawsuit was filed on behalf of
security applicants at Target's 113 California stores. The
plaintiff applied for a security guard position with Target Stores
and was required to take the California Psychological Inventory
(CPA) and the Minnesota Multiphasic Personality Inventory (MMPI).
The plaintiff contended that the test questions probed into his
private thoughts and deepest feelings and were not job related.
The court agreed that the some of the test questions did indeed
invade the applicants' privacy because they asked about religious
beliefs and sexual preferences.
Among the true/false questions were:
- I believe my sins are unpardonable.
- I am very attracted to members of my own sex.
- Evil spirits possess me sometimes.
- I have no difficulty starting or holding my bowel movement.
- My sex life is satisfactory.
- I have never been in trouble because of my sexual behavior.
- I feel sure there is only one true religion.
- I go to church almost every week.
Target needed to show some compelling reasons for the invasion of
privacy and demonstrate that the test served a job related purpose
to justify that invasion of privacy. While the court
acknowledged that Target had an interest in employing emotionally
stable persons as security officers, Target did not show how
information pertaining to an applicant's sexual preferences or
religious beliefs would have any bearing on emotional stability.
Therefore the questions were deemed as not being job-related.
Target settled the the lawsuit for over $2 million without admitting
wrongdoing or liability.
I am sure that the company would not ask those same questions
directly in an applicant interview. That would represent an
unlawful inquiry. As a general rule, there Is little legal
difference in asking the question in an interview or soliciting the
response from a assessment questionnaire.
Some companies will utilize outside psychologists for interviews
and assessments because they mistakenly believe that the
psychologist can ask questions that would be illegal for the company
to ask. By sending the candidate to the psychologist's office,
the company believes that it has impunity. The psychologist is
acting on behalf of, and as an agent for the company. If your
company is in this predicament, I would suggest that you discuss the
situation with your company's attorneys.
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Review of the Candidate Resources System By Federal
The pre-employment assessments published by Candidate Resources have been through
numerous FDIC audits as a result of their use in banks. EEOC
offices in several cities are familiar with Candidate Resources' systems,
especially the EEOC office in Dallas, Texas, which maintains an
extensive file on their assessments.
The Achiever has been reviewed by the Employment Standards
Administration Office of Federal Contract Compliance Programs, an
agency of the U. S. Department of Labor. That office stated
that there is no need to have the Achiever validated within each
company because there is only a slight possibility of an adverse
effect on a protected group, and in particular, because there are no
passing or failing scores.
Despite these numerous reviews by Federal agencies, Candidate
Resources maintains validity of its programs through the construct
validation process, and ongoing concurrent validation studies for
clients. The use of these validation processes has meant that
no employer has received an adverse finding for using Candidate
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