Employers often use pre-employment tests to screen job applicants before offering them a position with their company.  Pre-employment tests can assist employers in narrowing prospective employees to the most qualified and suitable individuals for the job, but can also be discriminatory. 

Types of Pre-Employment Tests

Commonly used pre-employment tests include cognitive tests that assess skills such as reasoning, knowledge relating to a job, and reading comprehension.  Physical ability tests might measure an applicant’s arm or leg strength or stamina.  Personality tests, which are becoming increasingly popular, measure applicant traits such as positivity and cooperativeness.  Personality tests might also address the applicant’s propensity for stealing or being late for work. 

Pre-Employment Tests Must Not Discriminate

While pre-employment tests can be beneficial, they can also be discriminatory.  For example, in 1971 the United States Supreme Court found that Duke Power Company’s policy of requiring employees to have a high school diploma to be eligible for positions in all but one department and requiring employees to pass an intelligence test disqualified African American applicants at a significantly higher rate than white applicants.  See Griggs v. Duke Power Co. 401 U.S. 424 (1971).  Accordingly, the Court held that Duke’s practices violated Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or religion.  

Another example of a potential discriminatory policy under Title VII exists where an employer requires applicants to pass physical strength tests that disproportionately screen out women.  However, not all policies that appear discriminatory at first blush, including some physical strength tests, actually violate Title VII. 

Pre-Employment Testing Considerations Under Title VII

Title VII allows employers to administer pre-employment tests as long as the tests are not “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” Title VII also imposes restrictions on how employers are to score pre-employment tests.  Employers are prohibited from adjusting, using different cutoff scores for, or otherwise altering test results based on race, color, religion, sex or national origin.

Title VII further prohibits employers from intentionally discriminating against employees and from adopting policies, tests, or requirements that are facially neutral, but have a disparate impact on certain individuals based on the Title VII protected characteristics. 

The U.S. Supreme Court first held that neutral policies causing a disparate impact based on race, color, religion, sex, or national origin violate Title VII in Griggs v. Duke Power Co., which is discussed briefly above.  However, the U.S. Supreme Court has since clarified its ruling in Griggs by holding that disparate impact policies that are necessary for the safe and efficient performance of the particular job at issue might not be illegal.  For example, if a job requires employees to carry 90 pounds, a pre-employment physical ability test requiring applicants to carry 90 pounds might not violate Title VII even if it disproportionately keeps women from getting the job. 

However, a pre-employment test that is discriminatory, but both related to and necessary for the available job, still violates Title VII if the applicant can show that a less discriminatory alternative is available.  Consider, for example, a job similar to the one discussed in the previous paragraph that only requires employees to carry 40 pounds.  If the employer still demands applicants to be able to carry 90 pounds to qualify for the position, the policy would likely disproportionally discriminate against women.  In such a case, a female applicant could argue that the employer could have required employees to carry 40 pounds, which would have been a less discriminatory alternative to the 90-pound physical test.

insights for Employers using Pre-Employment Tests

Pre-employment tests can be highly beneficial to an employer.  Employees who are a good fit for a particular position are more likely to be good at and to stay at their job.  To minimize the possibility that pre-employment policies violate Title VII and other equality motivated laws such as the ADA, the Equal Employment Opportunity Commission (EEOC) advises that employers do the following:

  1. Administer pre-employment tests without regard to race, color, national origin, sex, religion, age, or disability.
  2. Ensure that pre-employment tests or other procedures implemented to evaluate applicants are job-related and foster results appropriate for the employer’s needs or purpose in hiring for the available position.
  3. If a pre-employment test screens out particular people, identify whether an equally effective alternate procedure with a less adverse impact on the group exists.  Then adopt that procedure.
  4. Stay on top of changes in job requirements.  For example, if machines become available to do heavy lifting, 40 or 90 pound lifting requirements, such as those discussed above, might no longer be necessary and could, thus, be discriminatory.
  5. Ensure that managers and test administrators understand the purpose of pre-employment tests and know how to appropriately administer and score those tests.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.