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Pre-Employment Screening Tests: When Are They Legal?

2. July 2014 08:42

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Many small businesses use pre-employment screening tests to quickly and objectively narrow an applicant pool down to the most eligible candidates. In fact, these screenings have been gaining popularity in recent years thanks to online job listings. Even the smallest business can be flooded with applications. Plus, a thoughtful screening process can go a long way toward reducing workplace discrimination and liability risks while allowing the cream to rise to the top.

But are these pre-employment screening tests legal? The answer is: usually. The Equal Employment Opportunity Commission (EEOC), the body that enforces employment laws, provides an Employment Tests and Selection Procedures fact sheet to help business owners understand the legal issues surrounding these tests.

We’ll be using this guide to examine some common employment tests that fall under the jurisdiction of the EEOC. Then we discuss how you can avoid inadvertent hiring discrimination on your employment tests.

(For more information on the EEOC, see: “Hiring an Employee? Know What Can Go Wrong.”)

What Is a Pre-Employment Test?

A pre-employment test can be any procedure your business uses to screen potential hires and employees under consideration for promotion. Some examples include:

Because these tests can (and have) been used to discriminate against employees and potential employees, the EEOC enforces anti-discrimination laws to prevent this from happening. These laws are…

These EEO laws make it illegal for employers to discriminate on the basis of race, color, religion, sex (including pregnancy status), national origin, disability, and age. Let’s take a look at how these laws apply to pre-employment screening tests.

What EEO Laws Say about Pre-Employment Screening Tests

In a nutshell, EEO laws prohibit the use of pre-employment screening tests as a way to discriminate against prospective and current employees. Below, we use EEOC guidelines to explore how each law draws a line between assessment and discrimination.

Title VII of the Civil Rights Act

Under Title VII, employment tests are legal as long as they are not “designed, intended or used to discriminate because of race, color, religion, sex, or national origin.” There are three major ways that a small-business owner could violate this law:

Title I of the Americans with Disabilities Act

Title I of the ADA makes it illegal for employers to use employment screening tests to discriminate against qualified applicants based on their mental or physical disabilities. Employers may violate this law if they do one or more of the following:

For more information about disability discrimination, check out our post “Recruiting & Hiring Tips for Small Businesses: Avoid Discrimination while Hiring.”

Age Discrimination in Employment Act

The portion of this law that addresses employment tests makes it illegal for employers to use screening procedures to discriminate against individuals who are 40 years of age or older. You can violate this law in two major ways:

How Can Small Businesses Avoid Employment Test Discrimination?

According to EEOC guidelines, there are several ways for small businesses to stay on the right side of employment law. Here are just a few:

Unfortunately, you may not be able to avoid all allegations of hiring and promotion discrimination. Even if the allegations turn out to be false and the charges are dropped, you’ll still be responsible for paying your legal defense costs. That’s where Employment Practices Liability Insurance (EPLI) steps in.

This coverage is designed to help small-business owners pay for the costs associated with an employment practices lawsuit. For more information, read our post “What Is Employment Practices Liability Insurance (EPLI)?

This post is part of an ongoing series on Employment Practices Liability Insurance, the high cost of employment discrimination lawsuits, and EEOC laws. Stay tuned for more on what can go wrong when hiring (and firing) employees.

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EPLI | Risk Management | Small Business | Small Business Risk Management | Tips for All Small Businesses

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