Resource Articles
Pre-employment testing is not just legally permissible — there is a strong and growing body of legal precedent that actively supports its use. Understanding the legal landscape helps you use assessment tools confidently and correctly.
Negligent Hiring: The Growing Legal Risk
Employers are increasingly being held liable for the actions of employees who harm customers, coworkers, or members of the public. Negligent hiring claims allege that the employer failed to make a reasonable investigation of an applicant’s fitness for a role where harm was foreseeable.
The legal standard is straightforward: did the employer take reasonable steps to determine whether this person was suitable for this position? A documented pre-employment assessment program is strong evidence that you did.
The Misinformation Problem
Much of the confusion about pre-employment testing legality stems from articles — often written by attorneys — that fail to distinguish between two fundamentally different categories of assessments:
Clinically oriented psychological assessments are diagnostic tools designed for mental health evaluation. They have been consistently found by courts to have no place in the employment evaluation process except in positions that can endanger public safety like police, firefighters and airline pilots. This is where the legal problems arise.
Behaviorally based pre-employment assessments — the kind offered by Saterfiel & Associates — are specifically designed and validated for employment use. They measure job-relevant behavioral traits, not psychological diagnoses. These are legally defensible when used correctly.
What “Validated” Actually Means (Legally)
One common misconception: that validation means government approval. It does not. The EEOC does not validate assessments, and neither does the Office of Federal Contract Compliance. Their role is to investigate complaints of discrimination, not to certify tests.
Validation is a body of statistical research, conducted by the test publisher, that demonstrates the assessment measures what it claims to measure and does not create adverse impact against protected groups. Validated assessments should come with documented validation studies that can be produced if challenged.
Key Principles for Legal Use
- Apply assessments consistently — all candidates for the same position should be assessed using the same tool.
- Use only job-relevant criteria — assess traits that are actually required for success in the specific role.
- Do not set arbitrarily restrictive cutoff scores that cannot be justified as bona fide occupational qualifications.
- Use assessments as one component of a broader hiring process — not as the sole basis for a hiring decision.
- Work with a publisher who will defend their validation and provide documentation if challenged.
The bottom line: A properly selected and consistently applied pre-employment assessment program is one of the best things you can do to protect your organization from both negligent hiring claims and EEOC challenges. The legal risk isn’t in testing — it’s in the subjective, undocumented hiring practices that assessments replace.