Increasingly employers are using “tests” and assessments to determine applicant qualifications and if he/she would be a “good fit” for the organization. Employers, of course, need to be mindful of not violating federal anti-discrimination laws in administering such tests.
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA) prohibit the use of discriminatory employment tests and selection procedures. Title VII permits employment tests as long as they are not “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” There are also restrictions on scoring. Employers may not adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin.
The types of tests that are commonly used today include:
- Cognitive tests to assess reasoning, memory, perceptual speed and accuracy, and skills in arithmetic and reading comprehension;
- Knowledge of a particular function or job;
- Physical ability tests to measure the physical capability to perform a particular job;
- Sample job tasks;
- Medical inquiries and physical examinations, including psychological tests, assess physical or mental health;
- Personality tests and integrity tests to assess the degree to which a person has certain traits or dispositions (e.g., dependability, cooperativeness, safety)
- Predicting the likelihood that a person will engage in certain conduct (e.g., theft, absenteeism);
- Criminal background checks provide information on arrest and conviction history;
- Credit checks provide information on credit and financial history;
- English proficiency tests.
There are a number of companies that offer pre-employment testing that claim to screen candidates in areas such as judgment and decision-making proficiency, workplace personality/disposition, and background experience. I question whether these tests are culturally neutral and if in fact, one’s performance on these tests are influenced by cultural background. How many potentially good candidates are disqualified based on their scores? HR should be looking for patterns that might suggest disparate impact on certain groups.
Relative to credit checks and checks on financial history, it is more likely that people of color, perhaps women who have been single head of household, or immigrants, may not measure up to dominant group standards of what “good credit” looks like. Depending on the job function, I am not sure why this would be an important factor. Perhaps one’s credit is not good because of unemployment or underemployment and securing a job would help to improve their financial standing.
Employers should not only be concerned that these tests meet the anti-discrimination regulations. They should also ensure that the pre-employment tests they use at least claim to be culturally neutral.
