Legalities of Using Testing & Assessments

Topics
Quick Overview
Consistent Application of Testing
Job-Related Assessments
Adverse Impact
Quality of the Instrument
Medical and Non-Medical Tests
Final Comments

Quick Overview
There are many misunderstandings regarding the legal use of testing and assessments in the business world. Certainly there is a maze of federal and state regulations and guidelines that can easily intimidate the average businessperson. The media has all too often publicized some rather dramatic misuses of testing, creating the impression that it is an all but certain recipe for disaster. It is reminiscent of a childhood memory of pleading for a BB gun for a birthday present, and being told that a BB gun would shoot out my eye, my friends' eyes, and even the eyes of total strangers. Both of these are fantastic exaggerations of a real, but manageable concern. The reality is that the proper and consistent use of effective testing and assessment systems can dramatically strengthen a company's legal position. Job-related testing and assessments are essentially the only way to document objective and non-discriminatory hiring practices.

Consistent Application of Testing
There should be a standardized selection process for each position or job category. All applicants for the same position must take the same test or assessment at the same point in the process. It is not necessary to test everyone. It is not necessary to test everyone within the same job category. It is necessary to test everyone who reaches the same point in the process where tests or assessments are used. It is also not necessary to use testing for all positions within the company.

Job-Related Assessments
Tests and assessments are only valuable if they measure criteria that are directly related to job performance. This is necessary for legal compliance also. In the selection process, the greatest advantage in using assessments is using the information to predict the future performance of applicants. The ability to do this is not an intrinsic quality of any test. It is found in the relationship of the test results to the results of job performance, and this must be demonstrated through validation research.

Adverse Impact
Under the Uniform Guidelines on Employee Selection Procedures (1978), a selection process must provide fair and equal employment opportunities to all applicants. Testing may be used:

  - to screen out those applicants who are not likely to be able to perform the job successfully
  - to group applicants in accordance with the likelihood of their successful performance
  - to rank applicants, selecting those with the highest scores for employment

The operative principle must always be to avoid any adverse impact or non-performance related discrimination against any minorities.

Quality of the Instrument
It is of critical importance that instruments used in a selection process meet certain standards:

- The instrument should be copyrighted no earlier than 1991. Two pieces of legislation that have directly impacted testing are the Civil Rights Act of 1991 and the Americans with Disabilities Act of 1990. The provisions of both of these acts must have been considered in the construction of any psychometric instrument used in making business decisions involving people.

- The instrument must have been designed for use in a selection process. Many instruments which were originally validated for use in counseling and self-development are unfortunately marketed as hiring tools. Validation is a major element of compliance, and validation is dependent upon two things. First, that the instrument has demonstrated that it measures what it claims to measure, and secondly, that it has demonstrated it under the same circumstances in which it is being used (i.e. It is expected that an instrument used in the business environment would have used employed people in its psychometric studies).

- The technical manual for the instrument must provide thorough documentation of:

  - the development of the scales used
  - the development of the norms
  - the various validation studies
  - the diversity of the populations used in the studies, representing a mixture of appropriate ages, sexes, and races

-The psychometric studies which generated the original norms should be revisited approximately every three years. This allows the instrument to adjust to changes in demographics and social values and attitudes.

Medical and Non-Medical Tests
The Americans with Disabilities Act ("ADA") provides that no company shall discriminate against a qualified individual with a disability because of that disability in regard to hiring, advancement, training, or other elements of employment. In a court of law, it can be assumed that if a company knew of a disability, that knowledge prejudiced their decisions. The ADA therefore, in Section 12112(d), prohibits medical examinations or medical inquiries of a job applicant as to whether the applicant is an individual with a disability or as to the nature or severity of such disability. It is important to understand that this prohibition only refers to "medical examinations and inquiries". This refers to actual "medical" examinations regarding an applicant's "medical condition or history" which is designed to establish whether that individual is suffering from a physical or mental illness.

The ADA goes on in Section 12112(d) to address acceptable inquiries, when it states that a company "may make pre-employment inquiries into the ability of an applicant to perform job-related functions". This clearly permits the use of assessment instruments such as job fit assessments and honesty tests when used properly. The EEOC: Enforcement Guidelines on Pre-Employment Inquiries Under the ADA (1994) outlines the following critical points:

1. The purpose of the test - Instruments measuring fundamental characteristics of cognitive abilities, interests, personality, honesty and habits are providing information that is directly related to the successful performance of a job. Instruments which measure such things as psychoses, neuroses, physical or mental disabilities, or other pathological issues are prohibited in the pre-offer stage of a selection process. Medically-oriented tests may be given after a job offer has been made.

2. Medical or non-medical instruments - Psychometric assessment instruments designed for medical purposes are normed on populations of individuals with some type of medical disorder (e.g. The Minnesota Multiphasic Personality Inventory was originally normed on a population of abnormal individuals who were under clinical care. Using those norms, the MMPI can measure such factors as paranoia, schizophrenia, and other psychopathology.). Non-medical assessment instruments are normed on a population of individuals that is consistent with the population and purpose for which the instrument is to be used (e.g. The Prevue Assessment was normed on a broad based population of normal, working individuals. Psychopathology was not a criterion of the population. As a result, the Prevue can only measure traits, abilities, and attitudes which are related to job performance. It is blind to psychopathology.)

3. Content of items - While an instrument may not be designed as a medical test or assessment, if it is to be used at the pre-offer stage, it is important to insure that none of the items (questions) within the instrument constitute a "medical inquiry" concerning the existence, nature, or severity of a disability. (e.g. At times I have been so depressed, I sought professional counseling.)

Final Comments
Legal concerns are a fact of every part of business life, but they are manageable concerns. Armed with knowledge and reasonable awareness, any business can take advantage of the power of assessment and testing information, and at the same time, strengthen its legal compliance.

This is a general outline of the major legal considerations. It is not a substitute for professional legal advice. The appropriate legal counsel should be consulted before making any decisions of this kind.