02/ 15/ 2007
by Beth Gaudio, NFIB Legal Foundation
Many employers use pre-employment tests to weed out unsuitable applicants. These tests may include skills tests, aptitude tests, psychological tests, personality tests, honesty tests, medical tests and drug tests. Both state and federal law impose numerous restrictions on what sort of testing is permitted. These restrictions are often vague and open to contradictory interpretations. As a result, you should only use tests that are absolutely necessary and, unless the test is as basic as a typing test, you should consider consulting with a lawyer before administering it.
Testing people with disabilities
As an employer, you must be sure not to discriminate against people with disabilities. To avoid claims of discrimination, you must ensure the tests examine people's skills, not their disabilities.
- Avoid tests that reflect impaired mental, sensory, manual or speaking skills, unless those are job-related skills that the test is trying to measure.
- Accommodate people with disabilities by offering a neutral test when possible. For example, you can read a test to a blind person.
Skills tests
Skills tests range from something as simple as a typing test to something as complicated as an architectural drafting test. Generally speaking, these tests are legal, as long as they genuinely test a skill necessary for job performance.
Aptitude, psychological and personality tests
Some employers use written tests to gain insight into the applicant's general abilities, personality or psyche. But be careful; these tests are rarely appropriate and can leave you open to lawsuits.
- A multiple choice aptitude test may discriminate against minority applicants or female applicants because it reflects test-taking ability rather than actual job skills.
- Personality tests can be risky. Besides potential for illegal discrimination, this kind of test may invade a person's privacy by inquiring into topics that are personal in nature, such as religious beliefs or sexual practices.
- Psychological tests may also discriminate and invade privacy. They also are treated like medical tests when they obtain answers that suggest a mental impairment or other disability.
Lie detector and honesty tests
The federal Employee Polygraph Protection Act generally prohibits employers from requiring applicants to take a lie detector test or asking them about previous lie detector tests. There are very few exceptions, such as businesses that provide armored car services, alarm or guard services or manufacture, distribute or dispense pharmaceuticals. There is no federal law that prohibits you from using a polygraph, but it does violate many state and federal laws about privacy and discrimination. Also, these tests are not very reliable.
Medical tests
In order to comply with the Americans with Disabilities Act, do not ask an applicant about his current or past medical history and do not conduct a medical exam before offering the job. Once you have offered the applicant the job, you may then ask him to complete a medical exam as long as you ask every new employee to do the same. If you only ask people you suspect have a disability, you will violate the ADA.
Drug tests
The laws on drug testing vary widely from state to state. Before requiring an applicant to take a drug test, consult with your state Department of Labor to learn the rules in your state.
