Testing Job Applicants - Small Business

Learn the legal rules on pre-employment testing of job applicants.

Many employers like to use pre-employment tests as a way to screen out applicants who are not suitable for the job. These tests include skills tests, aptitude tests, psychological tests, personality tests, honesty tests, medical tests, and drug tests.

Although you are allowed to do some testing of applicants, both state law and federal law impose numerous restrictions on what you can do. These restrictions are often vague and open to contradictory interpretations. As a result, you should only use tests that are absolutely necessary and, unless the test is as basic as a typing test, you should consider consulting with a lawyer before administering the test to make sure that it will pass legal muster in your state.

Testing People With Disabilities

For all tests, you must take care to avoid discriminating against applicants who are protected by the Americans With Disabilities Act. To ensure that people with disabilities are not unfairly screened out by your test, the test must accurately measure people's skills, not their disabilities. Ways to do this include the following:

Avoid tests that reflect impaired mental, sensory, manual, or speaking skills unless those are job-related skills that the test is trying to measure. For example, even though a typing test is a manual test that will screen out people who cannot use their hands, it is acceptable in cases where the job you are filling is for a typist.

Accommodate people with disabilities by giving them a test that is neutral as to their disability whenever possible. For example, if you are giving a written test to applicants for a sales position to test their knowledge of sales techniques, you can offer to read the test to a blind applicant. This is a reasonable accommodation because sight is not required for the job, but it is required to take the test.

Skills Tests

Skills tests range from something as simple as a typing test to something as complicated as an architectural drafting test. Generally speaking, these tests are legal, as long as they genuinely test a skill necessary for the performance of a job.

Aptitude, Psychological, and Personality Tests

Some employers use written tests -- usually in a multiple choice format -- to gain insight into applicant's general abilities, personality, and/or psyche. These tests are only rarely appropriate, and the use of them leaves you vulnerable to various types of lawsuits. For example:

A multiple choice aptitude test may discriminate against minority applicants or female applicants because it really reflects test-taking ability rather than actual job skills.

A personality test can be even riskier. Besides its potential for illegal discrimination, such a test may invade a person's privacy by inquiring into topics that are personal in nature, such as religious beliefs or sexual practices.

In addition to issues of discrimination and privacy, psychological tests are treated like medical tests when they elicit answers that suggest a mental disorder or impairment (see below). This fact puts the test clearly within the purview of the Americans With Disabilities Act (ADA) and all of its restrictions.

If you do decide to use one of these types of tests, proceed with extreme caution. Make sure that the test has been screened scientifically for validity and that it genuinely correlates to necessary job skills. Review the test carefully for any questions that may intrude into an applicant's privacy.

Lie Detector and Honesty Tests

The federal Employee Polygraph Protection Act generally prohibits employers from requiring applicants to take a lie detector test or asking applicants about previous lie detector tests. The law includes a narrow list of exceptions that apply to, for example, businesses that provide armored car services, alarm or guard services, or manufacture, distribute, or dispense pharmaceuticals.

Even though there is no federal law specifically prohibiting you from using a written honesty test on job applicants, these tests frequently violate federal and state laws that protect against discrimination and violations of privacy. Plus, the tests are rarely reliable. Prudent employers stay away from them.

Medical Tests

To avoid violating the Americans With Disabilities Act, don't ask an applicant about his or her medical history and don't conduct any medical exam before you make a job offer.

Once you decide to offer the applicant a job, you can make the offer conditional on the applicant passing a medical exam. Just be sure you require the exam for all entering employees who are doing the same job. If you only require people whom you believe or know to have disabilities to take the exam, you will be violating the Americans With Disabilities Act.

Drug Tests

The laws on drug testing vary widely from state to state. Some states allow them only for jobs involving public safety; some states allow them only for drivers; some states allow them for any occupation; some states don't allow them at all. Before requiring an applicant to take a drug test, consult with your state department of labor to learn the rules in your state.