Avoiding Legal Pitfalls in Pre-Employment Testing


Mistakes in hiring can be costly, especially if it is a legal mistake. Pre-employment testing is a valuable resource to get insight into potential candidates, but not all tests are legally compliant. One major issue involves compliance with the Equal Employment Opportunity Commission (EEOC). If a company’s assessment process is challenged in court, violations of state, local, or federal law could have severe consequences and significantly impact your business’s future. Many employment test makers are aware of this, so they strive to make all assessments EEOC compliant, but if you’re trying to use a test that you made yourself or if you’re using a test that doesn’t say it can be used during hiring, you might have a problem. A lot of tests say they can give you insight into your employees, but be sure to explicitly ask whether it is compliant to use during the hiring process as many are not built for pre-employment.

Other legal issues can arise if testing if challenged by an applicant. A business needs to able to demonstrate how test results directly correlate to the outcome and job performance, meaning that a person who receives a poor test result will have also done poorly in the position. This component gives the pre-employment testing validity and prevents a company from being accused of unfair hiring practices. Additionally, the results should be consistent, this helps show that the test is not subjective in nature. If a candidate takes the same test twice, their results should be similar.

Even if you didn’t intend for a hiring test you develop or use to be construed as discriminatory or exclusionary, your enterprise runs the risk of being cited for violating discrimination laws if you aren’t intentional about the content and structure of your hiring test. The test you use should be able to objectively give you information on each candidate’s hard wiring and ability to perform without taking into account or including information about their gender, race, etc. Making hiring decisions based upon objective test results helps your business make the most informed decision possible, absent of any bias.

While there is a clear ROI and a lot of value in reducing turnover and building a better culture with employment testing, workplaces must be sure that the test that they are using is legally compliant and meant to be used during hiring.

As a side note, I am not an attorney and this isn’t legal advice. I would recommend that you discuss this topic with your attorney to learn more information or to evaluate your specific pre-employment testing practices.