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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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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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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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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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 Resources' systems.

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