Bee22 Pianezza

Legal issues regarding testing apply to all “selection procedures” defined by the US Government’s Uniform Guidelines on Employee Selection Procedures as:

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“Any measure, combination of measures, or procedures used as a basis for any employment decision. Selection procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and unscored application forms.”

As noted above, the Guidelines apply not just to tests, but to all selection tools and methods, including the interview, job application, reference checks, and other screening techniques.

Most professionally developed employment assessments (unlike many employment applications, interviews or assessment developed in-house) have been validated to ensure they demonstrate and correlate with job performance. However, the Guidelines do not require that any test (or application, interview or other selection procedure) go through a specific validation process which states:

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“These Guidelines do not require a user to conduct validity studies of selection procedures where no adverse impact results.”

It is only when the overall hiring process leads to demonstrable adverse impact against a protected group that individual components of the screening process will be scrutinized to determine potential sources of adverse impact. And, as noted above, a professional assessment is often one of the few selection tools that come with validation evidence backing up claims of job relatedness.

Regarding personality assessments (such as behavioral tests that measure aptitudes and attitudes) researchers who focus on personality testing have consistently found that

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“There is no evidence that well-constructed personality inventories systematically discriminate against any ethnic or national group.”

Hogan, H., Hogan, J., & Roberts, B.W. (1996). Personality and employment decisions. American Psychologist, Vol. 51, No. 5, 469-477.

While ability tests will, by definition, discriminate between high and low performers and can – on occasion – score members of protected groups lower than others, there are cases when the needs of a business (so-called “Business Necessity”) can be used as a successful defense against discrimination. For example, some jobs (such as machine operators) require unimpaired vision. Hiring for these positions could show adverse impact against those with vision disabilities. However employers can make the reasonable case that business necessity requires them to make hiring decisions based on physical requirements that can lead to adverse impact against the vision impaired.

The most important fact regarding the use of assessment is that all the empirical evidence, as well as Federal legal guidelines and standards, support the use of testing in the employment setting as long as the tests have been professionally developed and the skills, competencies, and/or behavioral dispositions they measure are essential for successful job performance. And, as always, it is the employer’s responsibility to periodically audit the entire hiring process (e.g., the interview, testing, the job application, and any other selection method used) to ensure that it continues to be fair and free from bias.

For a more comprehensive review of legal issues regarding employment testing, see http://www.fadvassessments.com/docs/papers/Testing_and_Legal_Guidelines.pdf.