Many different laws cover the employment process. Navigating the laws and compliance problems that can arise is a critical part of a successful hiring team.
When developing a hiring process, you may encounter a variety of tests and assessments, or mention thereof, that can be used to refine your candidate pool and help pick the most appropriate people for a job.
The question is, are those tests legal? If so, which ones? Are there legal issues you need to watch for?
The Value of Legal Restrictions
Many hiring managers and business owners may view legal regulations as an unnecessary burden. Perhaps they don’t see the value of the laws, or they feel that those laws don’t apply to them because they aren’t going to misuse the tool or system the law specifies should not be used.
Many people fail to realize that these laws are written in the blood, sweat, and tears of the individuals harmed by them. An assessment that is deemed illegal is often considered as such because it has been willfully used as a tool for discrimination.
That’s why pre-employment tests are regulated but legal. Some tests check for valuable, non-demographic information, like skills and ability to do a job. Others are based on faulty or fraudulent science, which may or may not be intentionally discriminatory.
A related issue comes up with tech and automated systems quite frequently. Machine learning algorithms look for patterns and associated outcomes, but they do not have logic or sanity checks. An algorithm will also spot patterns that you, as a rational human, can understand aren’t relevant.
For example, a machine learning algorithm might determine that people with too many vowels in their names don’t perform as well in their jobs. You and I know that’s irrelevant, but the machine doesn’t. If the machine is operating without oversight, your candidate pool can be skewed by this data for no real benefit.
Legal restrictions on specific tests exist for a reason, no matter how well you think you can circumvent that reason. In these cases, it’s better to comply than to try and beg for forgiveness later.
Types of Pre-Employment Testing
The title mentions two kinds of assessments: IQ tests and Aptitude tests. These aren’t the only tests out there, however. So, before we get into the specific legality, let’s talk about the different kinds of tests you might be tempted to apply.
Aptitude tests are often called job knowledge tests or skills tests. They are assessments used to judge the candidate’s ability to perform their duties. You might test a potential IT hire on their firewalls and network architecture knowledge. You might test a sales candidate on their ability to be persuasive when talking about a product.
These tests are often professionally-developed and available for purchase to use within your organization. They are also often centralized, and a given candidate may have taken the same test multiple times if they’ve made it to the interview stage with various companies.
Many people believe that IQ tests are a test of intelligence, but that’s not strictly accurate. IQ stands for “intelligence quotient” and is poorly defined. In fact, IQ tests are often heavily based on cultural understanding. Two examples might be:
- Knowing who a particular historical figure is. In America, it makes sense to know who George Washington is. In Japan, not knowing who he is doesn’t say anything about your intelligence. Conversely, someone in Japan is more likely to know Emperor Jimmu than someone in America.
- Assuming an agnostic and fundamental “logic” to the way people think is a basis of intelligence tests. Yet, study has shown that the fundamental way you think is influenced by your culture and cannot be generally assumed.
While some variations on IQ tests still exist and are in use today, most of the time, they aren’t based on anything truly relevant and end up causing more harm than good.
Personality tests are assessments used to judge the overall character traits of the people you’re examining to hire. These can test relevant (or irrelevant) qualities to your open role. For example, you might want to assess an individual’s disarming personality if they’re going to be a front-line support agent who benefits from being able to defuse a situation. However, a disarming personality likely isn’t relevant for an IT developer role.
This dichotomy is where personality tests can get into hot water. Your assessments need to be relevant to the role. Testing someone on – and making decisions based on – characteristics that aren’t relevant to the role can be considered discriminatory.
Since we’re not discussing personality tests in detail today, suffice it to say that much of what we discuss will also apply to them. In particular, all assessments need to be relevant above all else. If they can be misused, even if you aren’t misusing them, it opens you to risk and liability.
Integrity tests assess a candidate’s honesty, integrity, and ability to be truthful in situations that involve risk. They test responsibility, sense of duty, ability to follow rules, morality, etc.
Legal challenges over the years have questioned whether or not integrity tests are discriminatory. For the moment, they are:
“The EEOC and the parallel state human rights agencies have determined that integrity tests do not have a discriminatory impact on applicants. However, it’s important that employers equally test each applicant who could have unsupervised access to cash, inventory or trade secrets once hired.” – HireSuccess.
While an integrity test may not be illegal, it may not be helpful. Most integrity tests have an obvious “right” answer or behavior they’re looking for. That means that your integrity assessment isn’t genuinely assessing your candidate’s integrity, so much as it is their ability to navigate the test itself.
Emotional Intelligence Tests
Emotional Intelligence is a relatively new wave of concern amongst businesses. A growing understanding of emotional intelligence, emotional awareness, and how these emotions affect one another has driven a greater awareness of how to use these emotions in the workplace.
Emotional intelligence assessments can be quite beneficial if the results are put into context. Emotional intelligence can also be trained. They primarily predict outcomes in teamwork and the ability to collaborate, resolve conflicts, and self-assess. However, much like integrity tests, they may not be accurate; people don’t necessarily have the self-awareness to answer currently or honestly.
Physical Ability Tests
Physical ability tests are one of the most clearly-defined assessments to demonstrate the core point: assessments must be relevant.
Suppose you’re hiring for a job on a construction site where your new employee will need to haul sacks of concrete and heavy boards, operate jackhammers, and perform physically. In that case, a physical assessment may be relevant. On the other hand, an office job with physical lifting requirements is more likely to be deemed discriminatory against physically disabled individuals.
Physical performance, when relevant, is extremely important. After all, you don’t want to hire someone who is physically incapable of performing their duties. However, physical limitations do not mean all jobs are off-limits. Many accommodations can be made for particular roles, and in many cases, judging an individual by appearance or by “on paper” performance may be inaccurate.
The Legality of Aptitude Tests
As mentioned above, aptitude tests can be highly relevant for estimating the candidate’s ability to perform in their role. There are two legally-enforced regulations governing these tests.
The first is that every question on the test – at least those used in your determination – must be relevant to the role. If you give a general assessment to every candidate that includes questions about sales and customer service, this is great and relevant for sales and service roles but less so for management, developer, IT, or other roles. Using the results to decide for one group will be relevant; using them for the other will be inappropriate.
The second is that the assessment should be given uniformly to all candidates in a given phase of the hiring process. You must provide every candidate who reaches that stage of the hiring process an equal opportunity to demonstrate their skills and abilities. If you only assess certain people – even if the group you choose to assess is chosen randomly – the difference in data used to make a judgment and hiring decision is discriminatory.
The primary basis for the legality of aptitude tests, and the rules mentioned above, comes from a Supreme Court case from 1970. The case, Griggs v. Duke Power Co., made an example out of discriminatory practices that used aptitude tests as a racial gatekeeper, preventing black employees from rising in the company ranks.
Additionally, aptitude tests must be professionally developed to avoid discriminatory questions or bias in the way questions are asked. In general, paying for a framework that provides assessments that you give to every candidate will be fine; creating a test of your own will not.
The Legality of IQ Tests
IQ tests fall under the same ruling and same jurisdiction as aptitude tests.
The same court case ruled that any assessment given to candidates must be:
- Provided to all candidates equally, at the same point in the hiring process.
- Developed professionally to minimize bias in the questions asked and their format.
- Relevant to the role you’re filling with the hiring process.
With these rules in mind, the reason IQ tests are often considered less legal is two-fold.
- First, IQ is commonly defined as an outdated and often irrelevant judge of “intelligence” through the lens of trivia knowledge and cultural absorption. Intelligence as a general concept is tricky to define and is highly dependent on lived experience, cultural origin, and societal pressures. Moreover, many factors of IQ can be traced back to protected categories, such as racial treatment or socio-economic status.
- Second, IQ tests are often difficult or impossible to relate to job performance. It’s one thing to ask candidates how they would de-escalate a situation as a relevant question for a customer service position. It’s quite another to ask candidates what number in a series of numbers is the next logical number in the sequence. While “logic” might seem unbiased, it’s heavily cultural.
IQ tests can still be found in use, from tech companies like Google to the U.S. military assessments, but these are very carefully designed to be job-related and are more defensible. Whether or not they’re genuinely effective is another story, however.
The Guiding Rules of Pre-Employment Assessments
In the end, it all comes down to those three rules set forth by the Supreme Court. Any assessment, no matter what qualities you’re intended to assess, needs to be given equally across all candidates, it must be professionally developed, and it must be relevant to the role you’re looking to fill.
It’s your responsibility to ensure that the hiring process is not discriminatory. Any time your assessment can be questioned on one or more of those points, you may be looking at an illegal assessment. While it may not be challenged in practice, it opens up your company to liability, and you are likely to lose any sufficiently well-prepared court case.
In the end, legality is only one of several factors you should consider whenever you’re issuing assessments to your candidates. It’s also critical to monitor assessment results and the overall ability of those assessments to predict job success. If you find that an assessment doesn’t correlate to success in the role, the next question is whether or not it’s even worth issuing the test in the first place. After all, it’s an expense and a time-consuming part of the hiring process, and if it’s not improving your results, it isn’t worth keeping around.
Do you or your company have any questions about any of the listed pre-employment assessments or if you should implement them into your hiring process? If so, please feel free to leave a comment down below, and we’ll get a conversation started! We’d be more than happy to assist you however we possibly can!
Andrew Greenberg’s roots in recruiting date back to 1996. He has experience both on the agency-side and corporate-side of the staffing business, with a focus in the financial services space at companies like Bloomberg and UBS. He also has core experience with information technology staffing, and has worked for major software companies such as SAP Business Objects and IBM/Informix Software. To get in touch with Andrew, you can reach him by email or by phone at (800) 797-6160.