Question:

I am looking for a job for the first time in several years, and I have noticed that employers are now using all sorts of tests for job applicants. Drug tests used to be controversial, but it seems they were just the tip of the iceberg. I have heard that some companies are even doing credit checks. Why is there an increase in testing, and should I agree to the testing?

Answer:

Welcome to the brave new world of employment testing. There has been an increase in the use of employment testing in the last few years, due to increased safety and security concerns after 9/11, and concerns about workplace violence. Also, as more and more applicants apply for jobs over the Internet, employers are trying to develop ways to objectively screen large numbers of online applicants.
The use of tests and other screening procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. A wide variety of employment tests are used by employers, including cognitive tests to assess mental aptitudes, physical ability tests, performance tests, psychological tests, medical exams, personality tests, and English proficiency tests. Many employers also do criminal background tests and credit checks.
Employment tests are not illegal per se, but they do have to be job-related, and they must be administered in a nondiscriminatory manner. Use of employment testing can violate California and federal anti-discrimination laws if an employer intentionally uses the tests to discriminate based on race, color, sex, national origin, religion, disability, age (40 or older), or other protected classifications. Use of tests and other selection procedures can also violate anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law.
In the case of discrimination based on race, color, sex or national origin, the discriminatory effect of employment tests need not be intentional to be illegal. Tests may instead be challenged based solely on discriminatory impact. For example, in 2005 a physical strength test for entry-level production jobs at Dial Corporation was successfully challenged when it was shown that the test was more strenuous than the actual job, and that women were disproportionately disqualified by the test. A test that has a discriminatory impact related to race, color, sex, or national origin is therefore presumed to be illegal unless the test is job-related and consistent with business necessity.
Individuals with disabilities and older employees receive slightly less protection when it comes to employment testing. For example, employment tests that tend to disproportionately affect older works are permissible, as long as such tests are shown to be related to factors other than age. As a result, challenges to employment tests on the basis of age discrimination are unlikely to succeed unless the employee can prove that the discrimination is intentional. Disabled job seekers may challenge a medical exam or a disability-related questionnaire that is given before a conditional job offer is made. These types of tests or questions must be consistently applied for all prospective employees entering the same job category.
The EEOC recently issued a fact sheet outlining some employer “best practices” for employment testing and selection of employees. Some of the EEOC recommendations include:

  1. Administering tests and other selection procedures without regard to race, color, national origin, sex, religion, age, disability or other protected characteristics.
  2. Ensuring that employment tests and other selection procedures are job-related, and that the results are appropriate for the employer’s purpose.
  3. 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 also predict job performance but not disproportionately exclude the protected group.
  4. Monitoring changes in job requirements, and updating test specifications or selection procedures accordingly.

In determining whether to consent to the testing that you are encountering in your job search, you should examine whether the test is job-related, and whether it is being fairly administered. For more information on this topic, you can also review the fact sheet on the
EEOC website at http://www.eeoc.gov/policy/docs/
factemployment_procedures.html

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