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Are Your Hiring Assessments Legal?
Does the way you do pre-employment testing comply with legislation? Are you taking a risk by using assessments in a way a disgruntled candidate could object to? The Equal Employment Opportunities Commission (EEOC) itself says that “The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job.” But the tests need to be used in a way that does not violate anti-discrimination laws. How does your process measure up?
All countries have rules around the use of selection tools, to make sure they are free from bias. Whether you’re in the USA or elsewhere making sure you are using testing appropriately is important to avoid both potential legal action, but also reputational damage from unhappy candidates. In particular, no employer would want an allegation they had used tests in a discriminatory way, but it can be easy to end up doing this by having an unstructured approach. Applying the rules set down by the EEOC just makes sense.
Here are the EEOC Best Practice Guidelines – I’ve included them in full as they are short, and easy to comprehend – the bolding is mine:
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Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
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Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under the Uniform Guidelines on Employee Selection Procedures (UGESP).
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If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
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To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
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Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
EEOC doesn't address privacy issues, but in any jurisdiction you need to be confident candidate information is protected. Remote testing has increased the risk with this.
Some of the issues we come across regularly are:
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Personality tests designed for employee personal development being used in hiring – even where the test providers specifically state they are not appropriate for hiring
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Skills or knowledge tests being used where there is no scientific basis for deciding an appropriate ‘pass / fail’ score and no record of the correlation between prior test scores and success in the role i.e. not validated
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Not all candidates being given tests, or not all candidates being given the same test.
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Tests being taken remotely but without any oversight to avoid candidates cheating
Any of these issues would likely mean the testing would not comply with EEOC requirements, and be putting the employer at risk.
We love the use of testing to make fast, more accurate decisions, and using these sensible guidelines will make sure you can always defend any accusation of bias.
Giles Pearson | After 18 years as a partner with a large public accounting firm, Giles founded Accountests to help those recruiting accountants make better hiring decision
