What do you need to know about pre-employment testing?

What types of testing are available?

• Achievement tests. Achievement tests are used to pick out applicants who already possess a special skill or knowledge needed to perform a job. When properly developed, these tests tend to be reliable and valid predictors of job performance. However, allowing differences in testing conditions (time to complete, etc.) will prompt legal challenges.

• Aptitude tests. Aptitude tests measure a person's potential and capabilities, rather than specific skills. They may be unlawful at the pre-offer stage in the event their results show that an applicant is likely to suffer from a psychological disability.

• Personality tests. Personality tests are supposed to help target which applicants are more mature, objective, sociable, happy, etc. However, their use poses several problems. For one, they are difficult to validate, which is the key to defending against charges of unintentional discrimination. Also, some applicants may try to fake the tests by giving the answers that they think are the right answers. Finally, some applicants will resent personality tests as an invasion of their privacy. Litigation has resulted from the use of personality tests. Remember that you need to be able to demonstrate the job-relatedness of any testing you undertake.

• Lie detector tests. Federal law-the Employee Polygraph Protection Act of 1988-generally prohibits employers from requiring or requesting that job applicants take a polygraph or lie detector test as a condition of employment. Many states also have such a law; see State Laws for details. There are exceptions to the law for certain jobs, notably those with security firms or that involve handling pharmaceuticals.

• Demonstrations. Applicants can be asked to describe or demonstrate how they would perform any or all job functions, as long as all applicants in the job category are asked to do this. Applicants who need a reasonable accommodation of a disability to do a job demonstration must be provided a reasonable accommodation or allowed to simply describe how they would perform the job function. Even if other applicants aren't asked to do so, a particular applicant may be asked to describe or demonstrate how he or she would perform a job function. But you can ask only when it is reasonable for you to believe that the applicant will not be able to perform a job function because of a known disability. You may know about a disability either because it is obvious, like when the applicant is in a wheelchair or missing a limb, or because the applicant has voluntarily disclosed that he or she has a hidden disability.

• Agility tests. Physical tests are generally permissible as long as they are accurately tied to job performance, but can become a problem when they cross the line from being a physical test to a medical test.

• Medical examinations. The legality of medical examinations is tied to when they are administered. Generally, medical examinations are permitted only if given after a conditional job offer has been made; they are not permitted before the job offer.

• HIV/AIDS tests. Testing for HIV or AIDS raises concerns over disability discrimination and privacy. The practice is subject to the rules for medical examinations and is explicitly restricted in many states. Employment discrimination on the basis of AIDS or HIV status may be prohibited by a state's fair employment practices laws, either explicitly or through a prohibition on disability discrimination. See State Laws for details.

• Genetic tests. The use of genetic tests poses several problems. The tests can raise concerns over disability discrimination. Racial or ethnic discrimination may also be implicated because some genetic disorders may be linked to race or ethnic background. Employee privacy also becomes an issue. Because of the clear potential for abuse, many states have placed restrictions on genetic testing. For more on genetic testing. see ¶61,359 , Can your company conduct genetic tests on applicants and employees?.

• Drug tests. As more and more organizations are using drug tests to identify and screen out users, applicants are coming to expect drug testing as part of the hiring process. Because there are conflicting interests between management's right to maintain a drug-free workplace and individuals' privacy rights, most employers that do drug testing have detailed policies. Before interviewing applicants, make sure you have reviewed the policy and be prepared to answer any questions that may come up during the interview.

Consistency checklist for tests

It's easy to say administer tests consistently but not always quite so easy to do. This checklist can help you keep the process fair.

• Allocate the same amount of time for applicants to complete the test.

• Reserve and use the same room, with the same lighting and temperature, for all applicants.

• Develop a standard set of test instructions and decide whether applicants will be allowed to ask questions before starting the test.

• Arrange to have the same or comparable equipment available for all applicants. Decide whether applicants will be offered choices, such as software preferences.

• Know what criteria to use when evaluating test results.

• Finally, know what documentation to collect and write down.

Accommodate applicants' disabilities in the testing process

The Americans with Disabilities Act of 1990 requires more of employers than just saying no to disability discrimination. Employers are under an affirmative obligation to make reasonable accommodations for applicants with disabilities.