What compliance issues are involved in creating a pre-employment test?

Pre-employment testing is a selection tool that can provide valuable information to aid the selection process. Pre-employment tests can add objectivity to the selection process if applicants for the same position take the same test under the same conditions and if the test accurately measures skills essential to job performance. Pre-employment tests should be validated (content validity, construct validity, criterion-related validity) to ensure that they measure the knowledge or skills that an applicant would need to perform the job.

Many compliance issues should be considered when implementing a pre-employment testing program. The Uniform Guidelines on Employee Selection Procedures of 1978 is one tool that can help with compliance issues. The Guidelines set forth a single set of employment standards on all employers covered under Title VII or Executive Order 11246, and they aid in determining whether an employer policy or practice causes a "disproportionate adverse impact" on the employment opportunities of any race, sex or ethnic group. To determine whether a selection procedure causes an adverse impact, the "4/5ths rule," or 80% rule, is applied, which involves comparing the hiring rates for different groups. If the selection rate for a protected group (defined by race, ethnic origin, sex, etc.) is less than 4/5ths (or 80%) of that for the group with the highest selection rate, the procedure is considered discriminatory.

For employers with 15 or more employees, pre-employment testing must also adhere to the employment provisions of the Americans with Disabilities Act (ADA). If a test screens out or tends to screen out a person with a disability, the test must be job-related and must be consistent with business necessity. Even if a test does meet that criteria, an employer still has an obligation to provide a reasonable accommodation, if necessary. The reasonable accommodation obligation applies to testing by protecting persons with disabilities from being excluded from jobs that they actually can do, because a disability either prevents them from taking a test or negatively influences a test result. However, an employer does not have to provide an alternative test format for a person with an impaired skill if the purpose of the test is to measure that skill.

Employers are encouraged to check their state laws before implementing a pre-employment testing program to determine additional compliance issues.