US Immigration and New York Employment Law

Legal Limits of Pre-Employment Tests

Employers use different employment tests and screening techniques to select employees that better fit certain jobs. Besides notoriously famous polygraph test which can be legally used only in limited number of special cases and the widely used Reid Report there are thousands of various tests that can be administered by employers to narrow down the pool of their potential and current employees.

There are general “honesty tests” and more specific ability, performance and certain skills test. However, the question is: how far can the testing go? What kind of questions are allowed and not allowed?

First of all, the tests should comply with the federal anti-discrimination laws. Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1967 outlaw any discrimination in pre-employment, as well as employment tests, procedures and screening techniques.

Employers cannot intentionally discriminate on the basis of race, color, sex, nationality, religion, disability or age. They also cannot administer tests in such a manner that would disproportionately exclude particular groups of people based on race, sex or another mentioned above basis.

Title VII of the Civil Rights Act of 1964, for instance (among other things), prohibits “disparate treatment.” An example of such a treatment would be a situation when an employer tested reading ability of African American applicants and not testing the same abilities of white applicants. Any tests and procedures even if they are seemingly neutral, but have an effect of disproportionately excluding applicants based on their race, color, sex, nationality, religion, disability or age are prohibited.

There are some situations when employers either cannot ask certain questions at all or until certain time. For instance, under the Americans with Disability Act, during the process of pre-employment testing an employer cannot ask questions about possible disability or require medical examination until the employer makes a conditional offer to the candidate.

Under the Age Discrimination in Employment Act, an employer cannot discriminate because of age against any person who is 40 years or older. It relates to any terms, conditions, or privileges of employment.

The Equal Employment Opportunity Commission (EEOC) enforces the anti-discrimination laws.