Many employers test applicants for basic workplace skills such as reading, writing and even a fundamental ability to perform arithmetic. Employers generally have a legitimate business interest in determining whether an applicant possesses the necessary skills to perform the job. But what issues should be considered before administering skills testing?
While Title VII of the Civil Rights Act of 1964 provides that employers may administer a "professionally developed" ability test, the test cannot be used or administered in a discriminatory manner. Nor can the employer act in a discriminatory manner based on the test results.
And even if the testing program appears to be neutral, the test cannot have a "disparate impact" on a protected class of individuals. In other words, the test results cannot be used to disqualify a disproportionately high number of applicants or employees in a protected class. The EEOC has issued guidelines for determining whether a test has a disparate impact.
Tests 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. In addition, employers should make sure that any skills test that they administer is related to the job requirements and consistent with business necessity.
Under the Americans with Disabilities Act, employers must ensure that test processes and test sites are accessible to people with disabilities --unless this poses an undue hardship on the employer. Employers may have to provide a reasonable accommodation to applicants or employees who ask for one.
An employer can test an applicant's physical fitness or agility to perform job-related tasks. However, under the EEOC's guidelines, if the employer measures the applicant's physiological or biological responses to performing the fitness or agility test, the test becomes a medical examination. In that case, the test may not be administered before a conditional offer of employment has been made, and it may be used for current employees only in limited situations.
The Age Discrimination in Employment Act prohibits employers from requiring applicants or employees who are 40 years of age or older to take a skills or ability test while exempting younger applicants and employees from the same requirements.
In addition to these federal laws, state laws may also impact on an employer's ability to administer skills or ability tests. Check State Laws for any laws that apply in your state(s).