Resource Centers:(News, information, and tools to support your practice)
Staffing and Employee Relations
January 2009
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7 signs a pre-employment test may be illegal
The Americans with Disabilities prohibits employees from giving applicants medical tests before they’re hired — and that might include examinations used to learn about candidates’ personality traits.
The key is distinguishing between personality tests and medical examinations that can be used to diagnose psychological disorders.
How can companies tell the difference? The EEOC says tests may be illegal if they are:
* Administered by a health care professional
* Interpreted by a health care professional
* Designed to reveal a physical or mental impairment
* Detailed enough to be considered “invasive”
* Designed to measure an applicants “psychological response to performing a task” (rather than “an ability to
* Normally given in a medical setting, and administered using medical equipment.
Normally, courts will look at a combination of those factors before ruling against a company — but sometimes one is enough.
For example, in this case the company lost because it used a test that was normally administered in a medical setting — even though the results weren’t interpreted by medical professionals.
Because of the danger of those types of lawsuits, its important for employers to:
* Examine what information their testing may uncover
* Make sure the tests are job-related and reveal traits relevant to the specific positions they’re used for, and only use tests that have been validated as ADA-compliant.
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