Subjective Risky Objective Protected Objectivity is the EEOC’s goal too. Assessment programs support it.
The assumption that testing creates legal risk has it exactly backwards. Subjective hiring is what creates exposure. Objective assessment reduces it.

It happens in HR departments all the time. Someone suggests pre-employment testing, and immediately there’s a warning: “That could get us in trouble with the EEOC.”

This concern, while understandable, has the situation exactly backwards.

What Actually Creates EEOC Exposure

Subjective selection procedures are what create legal risk. Without an assessment program, your hiring process depends entirely on interviews, gut feelings, personal biases, and the judgment of individual managers. Recruiters and managers naturally feel more comfortable with candidates who remind them of themselves — a tendency the EEOC recognizes and actively works to counteract.

The EEOC has always promoted objectivity in employee selection. A validated, consistently applied assessment program is objectivity. It treats every candidate identically. It evaluates job-relevant traits. It creates documented evidence that hiring decisions were made on a defensible, job-related basis.

The Real Risk: Not Testing

Consider a real-world example. A company is hiring a warehouse manager. Several external candidates have been assessed. Then a long-term employee — a member of a protected class — asks to be considered for the position. Management has doubts about his mental abilities.

Without assessment data, the company is caught between two EEOC risks: promote someone who may not be qualified (and face a future termination challenge), or pass over a candidate they cannot objectively justify passing over. Either path is treacherous.

With a validated assessment, the decision is defensible either way. The data shows whether the candidate meets the job requirements. The decision is based on documented, job-related criteria applied consistently to all candidates. That’s a position you can defend.

There have been very few disparate impact cases involving properly used pre-employment assessments — because validated behavioral assessments generally do not show adverse impact against any protected group. The cases that do arise almost always involve misuse: unreasonably high cutoff scores, assessments used outside their validated purpose, or inconsistent application.

The key distinction: There is a major difference between behaviorally based pre-employment assessments (what we offer) and clinically oriented psychological assessments (diagnostic tools designed for mental health settings). The courts have consistently found that clinical psychological testing generally has no place in the business hiring environment. Behavioral assessments designed for employment use are an entirely different matter — and a legally defensible one when used correctly.