Just What's Legal?
Title VII of the Civil Rights act does permit employers to use pre-screening employment tests when selecting qualified candidates and extending job offers. However, screening tests must be professionally developed and cannot discriminate against candidates on the basis of race, color, religion, sex, or national origin.
First, the test must be professionally developed. This does not mean a company has to buy the rights to a standardized test or hire an external consultant to develop professional tests. Instead, this means that the test must be reliable, valid, and specific to the job in question. Although it is highly recommended to use previously developed tests to ensure accuracy and reliability of results, smaller companies can develop standardized, objective, reliable, and consistent measures to evaluate skills by conducting a thorough job analysis and writing effective job descriptions to use in test development.
Second, the test must not intentionally or unintentionally discriminate against any candidate. The more professionally developed a pre-screening test is, the less likely it is to discriminate because it has been formally tested and revised to meet testing standards. However, if a company chooses to develop an in-house test, it should be tested and revised before formal implementation to ensure that protected classes are not negatively affected by wording, style, question choice, necessary background, or standardization issues.
If a situation arises in which an employer must test for a particular job requirement that can potentially have a discriminatory effect, the employer must prove that the requirement is a bona fide occupational qualification. In order to do so, the employer must demonstrate how the qualification in question is absolutely necessary to perform well in the position being filled. Also, the employer must establish that the qualification in question cannot be easily learned and that, even with reasonable accommodation, unqualified candidates will be unable to successfully perform the task.