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Pre-Employment Testing: Staying Within the Law

written by: N. Plowman • edited by: Michele McDonough • updated: 5/18/2013

If done right, pre-employment testing can be an effective way to identify the most qualified candidates for a vacant position. This article discusses how to ensure pre-employment testing is remains within the letter of the law to ensure your choice of the best qualified candidates.

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    Typical Testing

    In addition to standard pre-employment screening techniques, many companies use testing methods to identify qualified applications based on job-specific tasks, skills, and abilities. However, pre-employment testing is very costly and time consuming. It's only valid and reliable if a company knows how to accurately analyze test results.

    The most common pre-employment tests include typing tests, computer software and hardware tests, knowledge tests for specialized positions, aptitude tests that demonstrate ability and skill, safety tests, and company-specific tests to determine cultural and organizational fit to ensure higher retention rates.

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    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.

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    Potential Issues

    As with all tests, there are potential drawbacks and negative consequences. The following issues should be thoroughly evaluated and discussed before a company chooses to implement any pre-employment testing in formalized recruiting and selection processes.

    1. Work People are diverse, which also makes their testing preferences diverse – some people do better with visual tests, others audio. Therefore, a candidate who scores particularly high or low may not replicate the same results in a real-life situation that differs from the testing environment.
    2. Some people have test anxiety, which may negatively impact their ability to successfully perform a task even when he or she is fully competent to do so in a real-life situation.
    3. For a test to be reliable and valid, it must be administered equally to all candidates. This is not always possible because of different testing and interviewing circumstances. This might affect the accuracy and consistency of results, which may hinder the ability to choose the best candidate.
    4. Any pre-employment test must evaluate job-specific skills and abilities. However, many jobs are not easily measured in a single test, which means a candidate could perform exceptionally well on the tested ability but fail at other non-testable job functions.
    5. There are many different types of knowledge (experiential, educational, observational, etc.), and all types of knowledge cannot be measured in a screening test. Unfortunately, many tests fail to recognize experiential knowledge and only test book knowledge, which might skew results.

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