If you use off-the-shelf pre-employment tests to screen applicants, watch out! You could be setting yourself up for years of litigation if a disappointed applicant sues and alleges some form of discrimination.
Reason: Such commercial tests are in the EEOC’s cross hairs, now that it has decided to begin litigating more cases involving allegations of pre-employment discrimination.
Recent case: Vicky, who is hearing and speech impaired, applied for a cashier/stocker job at a Kroger grocery store. The company requires all applicants to take a customer service assessment test created by a third-party vendor. Vicky scored just 40%, part of the reason Kroger decided not to hire her.
Vicky complained to the EEOC, which took up the case. The EEOC subpoenaed information about the test, including any validity studies. Reason: The agency wanted to see if the test screened out applicants with disabilities, whether it measured skills that weren’t job-related and see if the test had a negative impact on minorities.
A federal appeals court recently agreed that, yes, the EEOC is entitled to the information. (EEOC v. Kronos, No. 11-2834, 3rd Cir., 2012)
Advice: Before purchasing a pre-employment test or coming up with your own, carefully assess whether it is necessary. Some testing companies make exaggerated claims about what their tests will do. It may not be worth the hassle, especially for positions that are at-will and don’t require advanced skills or education.
Run any testing program by your attorney. Remember that skills tests must be job-related and consistent with business necessity. Most so-called personality tests won’t meet that requirement.
