What kinds of pre-employment tests are given?

Policy issues in pre-employment testing

Employers must address the following policy issues prior to implementation of a testing program and review periodically while conducting tests:

• What proof is there that the test is based on the specific job requirements and is predictive of future behavior?

• What procedures are in place to ensure that the tests are administered appropriately and in a standardized manner?

• What documentation exists supporting the test's validation on our employee population?

• Are there any adverse impact statistics arising from use of this test?

• Do our competitors test? What benchmarks exist supporting this test?

• Has this program been recommended by consultants? What did counsel recommend after review of the proposal?

• Is the test cost-justified? Has the cost of the program been quantified and budgeted? Are expenses appropriate to the return?

Privacy concerns. When an employee's privacy rights conflict with an employer's testing policy and procedures, the result can be litigation. As a general rule, employers should preserve an employee's privacy rights. For more information on privacy rights in the workplace, begin at ¶62,010 .

Pre-employment testing and the Americans with Disabilities Act

Compliance with the Americans with Disabilities Act (ADA) requires that if an applicant reveals that he or she has a disability that prevents test-taking, the employer must attempt to provide an accommodation that will allow the applicant to take the test.

If an applicant informs the employer that dyslexia prevents him from taking a written test, the employer may accommodate the applicant by, perhaps, giving an oral examination. But if the test is designed to measure reading skills, and reading skills are an essential function of the job, the employer could require the applicant with dyslexia to take a written test.

Pre-employment medical test and inquiries. An employer is prohibited from conducting a pre-employment medical examination or making inquiries of a job applicant as to whether the person is an individual with a disability or as to the nature or severity of such disability. Inquiries into the abilities of the applicant to perform job-related functions are permitted.

• Prior to an offer of employment, an employer may not ask any disability-related questions or require any medical examinations, even if they are related to the job.

• After an applicant is given a conditional job offer, but before he or she starts work, an employer may ask disability-related questions and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

• After employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.

Employment entrance examination. Once an offer of employment has been made to a job applicant, however, the employer is permitted to require a medical examination before the applicant starts on the job. In fact, an employer may condition the employment offer on the results of such examination, provided that:

1. all entering employees are subjected to such an examination regardless of disability;

2. information obtained regarding the medical condition or history of the applicant is collected on separate forms and kept in separate medical files and is treated as a confidential medical record.

Unlike examinations conducted at any other time, employment entrance examinations need not be job-related or consistent with business necessity. The ADA only guarantees the confidentiality of the information gathered and restricts the use to which an employer may put the information.

What is a disability-related inquiry?A disability-related inquiry is a question that is likely to elicit information about a disability, such as asking employees about: whether they have or ever had a disability; the kinds of prescription medications they are taking; and, the results of any genetic tests they have had. Disability-related inquires also include asking an employee's co-worker, family member, or doctor about the employee's disability.

Questions that are not likely to elicit information about a disability are always permitted, and they include asking employees about their general well-being; whether they can perform job functions; and about their current illegal use of drugs.

What is a medical examination?A medical examination is a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual's physical or mental impairments or health. Medical examinations include vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.

Are there any procedures or tests employers may require that would not be considered medical examinations? Yes. There are a number of procedures and tests that employers may require that are not considered medical examinations, including: blood and urine tests to determine the current illegal use of drugs; physical agility and physical fitness tests; and polygraph examinations.

When may an employer ask an employee a disability-related question or require an employee to submit to a medical examination? Generally, an employer only may seek information about an employee's medical condition when it is job related and consistent with business necessity. This means that the employer must have a reasonable belief based on objective evidence that:

• an employee will be unable to perform the essential functions his or her job because of a medical condition; or,

• the employee will pose a direct threat because of a medical condition.

• Employers also may obtain medical information about an employee when the employee has requested a reasonable accommodation and his or her disability or need for accommodation is not obvious.

The Americans with Disabilities Act makes it unlawful for an employer to use qualification standards, tests, or selection criteria that screen out or tend to deny a job or continue employment to an applicant or employee with a disability. The purpose of this provision is to ensure that people with disabilities are not excluded from job opportunities unless they are actually unable to do a job. It ensures that there is a fit between job criteria and an applicant's (or employee's) actual ability to do a job.

Business necessity criteria. Job criteria that even unintentionally screen out, or tend to screen out, people with disabilities may not be used unless the employer demonstrates that the criteria, as used by the employer, are job-related to the position to which they are being applied and are consistent with business necessity. Selection criteria that exclude, or tend to exclude, people with disabilities but do not concern an essential function of the job would not be consistent with business necessity.

Defense. An employer may defend against a charge of discrimination under the ADA by showing that its qualification standards, tests or selection criteria are job- related and necessary for the proper operation of its business, and that the performance required for the particular job cannot be accomplished by reasonable accommodation.

Employment testing and fair employment requirements

The courts have consistently voided testing practices that are discriminatory. Employers cannot use tests to do what is not legal to do by other selection methods.

Discrimination based on minority or ethnic group. Because of subtle cultural biases in many tests and because of the substandard educational experiences suffered by some minority and ethnic groups, the test scores of blacks, Hispanics and other nonwhites may be lower than the scores of white job applicants. Good intentions or even the absence of discriminatory intent will not redeem testing mechanisms that effectively screen out minority groups and are unrelated to measuring job capability.

Those tests, then, that screen out a disproportionately high number of blacks, women or any other group must be validated-that is, proven to be a good predictor of job performance. Moreover, to meet fair employment requirements each test must be validated for each job. Thus, an industry-wide validation study proving that a test predicts success at welding will not relieve each individual employer who uses the test from its responsibility to validate the test for its own welding positions.

Federal equal opportunity guidelines require that employers:

• Measure for adverse impact on protected groups.

• Conduct validation studies where adverse impact has occurred.

• Conform to standards for validation studies.

Employers who continue to use tests with adverse impact on one or more protected groups may be found to have discriminated. Liabilities include back pay, attorney's fees, debarment and adverse publicity.

Discrimination against union membership. Screening out job applicants based on their union membership or sympathies is also unlawful discrimination. This problem sometimes arises when a unionized plant is shut down and a new owner is selecting employees with which to reopen the plant.

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What kinds of pre-employment tests are given?

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