Resource Articles
Whether to test or not is not really the question. If your company has any kind of recruiting or selection process, some form of applicant screening is already happening. Resumes, interviews, background checks, application forms, reference calls — all of it qualifies as a selection procedure under federal guidelines. The real question is: is your process objective, consistent, and legally defensible?
The Uniform Guidelines Cover More Than You Think
Many HR professionals believe that federal employment guidelines only apply to formal personality or aptitude tests. This is a significant misunderstanding that can create real legal exposure.
The Uniform Guidelines on Employee Selection Procedures, Section 1607.2(B), are explicit: the guidelines apply to “tests and other selection procedures which are used as a basis for any employment decision.” Employment decisions include hiring, promotion, demotion, referral, retention, transfer, and training selection.
The guidelines define a selection procedure as: “any measure, combination of measures, or procedure used as a basis for any employment decision. Selection procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and unscored application forms.”
In other words: your interview is a selection procedure. Your application form is a selection procedure. Your reference check is a selection procedure. They are all covered.
Does That Mean You Have to Validate Everything?
Not necessarily. The guidelines do not require validity studies for selection procedures that produce no adverse impact. But here is the catch: if your process does produce adverse impact — and you never measured it because you assumed informal procedures were exempt — you are already in trouble.
A validated assessment program actually helps here. Because validated behavioral assessments typically do not produce adverse impact against any protected group, they are a proactive way to ensure your selection process is defensible from the start.
The Four-Fifths Rule
The guidelines provide a practical test for adverse impact called the four-fifths rule: if the selection rate for any race, sex, or ethnic group is less than four-fifths (80%) of the rate for the highest-scoring group, that is generally considered evidence of adverse impact.
Here is a concrete example: 80 white and 40 minority applicants apply for a position. 48 whites are hired (60%) and 12 minorities are hired (30%). The minority hire rate is 50% of the white hire rate — well below the 80% threshold. That is evidence of adverse impact, regardless of whether you intended any discrimination. The fact that your process was “just interviews” provides no protection.
The Bottom Line
You cannot use any selection procedure in a discriminatory manner. You cannot, for example, require high Mental Acuity scores for positions where that aptitude is not a genuine job requirement. But a properly selected, validated assessment — applied consistently to all candidates for the same role and benchmarked to job-relevant traits — does not create adverse impact. It prevents it.
The irony of “not testing”: Companies that avoid formal assessment programs often do so out of concern about legal risk. But their informal, subjective selection processes — interviews, gut feelings, resume screening — are typically far more susceptible to both intentional and unconscious bias, and therefore far more likely to produce the adverse impact they were trying to avoid.
The safest, most defensible hiring process is one that is objective, consistent, job-relevant, and documented. A validated pre-employment assessment program is the most reliable way to achieve all four.