Of Course It's Legal, Never use just one screening tool to select candidates, whether the tool is a test,
an interview, recommendations or any other selection criteria.
Outline your procedures in a formal policy. Everyone involved
in the selection process is then bound to follow it.
The policy must include a variety of selection tools to avoid selection decisions
based on limited criteria, and skills tests must be demonstrably relevant to the job.
When Properly Administered.
We're not lawyers, and we don't pretend to be giving legal advice. But the
personality profiling and comprehension speed testing is so well established that we
can direct your attention to the relevant court decisions without being accused of practicing
without a shingle.
There is an old canard that using personality tests and intelligence tests in hiring is
not legal. The notion is embraced by those who are paranoid about litigation and by those
seeking an excuse to quash the use of such tests for other reasons. The darned falsehood
just won't die. In his otherwise interesting article about "Microsoft's IQ Dividend" (Wall Street Journal Business World 7/28/2004) writer Rich Karlgaad unfortunately repeats
the notion that a 1971 court decision, Griggs v. Duke Power, "...banished written IQ tests
and 'tests of an abstract nature' from job applications." This is an extreme misinterpretation
of the decision. IQ tests and tests of abstract knowledge are legal to use as
part of your hiring, career development and employee retention programs. Just don't use
them as Duke Power did.
The core accusation in Griggs V. Duke Power was that Duke Power was using IQ tests to
discriminate against minority job candidates. The court found that this discriminatory use
was a violation of the Civil Rights Act of 1964, but the opinion went on to say that the
Civil Rights act "authorizes the use of any professionally developed ability test,
provided that it is not designed, intended, or used to discriminate." Duke was only
giving the tests to black job applicants, not white applicants, and then turning black
applicants down based on an unsatisfactory score. Flat out racial discrimination, and
Duke Power was correctly found guilty.
The key is to follow simple guidelines that are dictated by ethics as much as by the EEOC:
Whatever screening tools are determined appropriate, all must be used with each
candidate at a given level of consideration. The interviewer should not pick and choose.
Subsequent court cases have upheld the principle that professionally prepared tests,
relevant to the job, uniformly applied in a non-discriminatory way, are allowed. These include:
WATSON v. FORT WORTH BANK & TRUST, 487 U.S. 977 (1988)
This case actually involved a charge of discrimination in a situation when there was no testing being done.
The Supreme Court's opinion was that:
"... an employer could insulate itself from liability under Griggs and its progeny
simply by combining such practices (interviews) with a subjective component, such
as a brief interview, in a system that refrained from making the objective tests
absolutely determinative, and could thereby remain free to give those tests almost
as much weight as it chose without risking a disparate impact challenge."
While validation studies, which demonstrate the relationship between a given pre-employment
test and job performance, are often a very good idea from a business stand point, the
Court also said:
"The nature of the 'business necessity' or 'job relatedness' defense - under which the
defendant has a burden of producing evidence after the plaintiff has made out a prima facie
case - also constrains the application of the disparate impact theory. Employers are not
required, even when defending standardized or objective tests, to introduce formal
"validation studies" showing that particular criteria predict actual on-the-job performance.
In the context of subjective or discretionary decisions, the employer will often find
it easier than in the case of standardized tests to produce evidence of a
'manifest relationship to the employment in question.'"
Considering the issue of how well tests relate to job skills, the Court recognizes the
prerogatives of an employer:
"Many jobs, for example those involving managerial responsibilities, require personal
qualities that are not amenable to standardized testing but are nevertheless job related.
In evaluating claims that discretionary practices are insufficiently related to legitimate
business purposes, courts are generally less competent than employers to restructure
business practices and therefore should not attempt to do so. Pp. 997-999."
Many consulting companies, including ours, render a valuable service to business through
personality, aptitude and intelligence testing for use in hiring and career development. We
would all have shuttered our shops long ago if there were any validity to Richard Karlgaad's
assertion in the recent Wall Street Journal.