IS EMPLOYEE TESTING LEGAL?

Many employers test prospective employees to determine their qualifications, personality traits, and likelihood for success. Is it legal?

It depends.

First, many courts have ruled that some employee tests are likely to uncover a mental disorder or impairment and, therefore, are "medical tests" that are regulated under the Americans with Disabilities Act, just as would be a test to discover a back problem or a hearing impairment. Basically, the ADA says that an employer cannot require medical testing before making a job offer, and that after a job offer is made, the employer may require the applicant to take a medical examination only if everyone in the same job category takes the same examination. If the individual is not hired because the medical examination reveals the existence of a "disability" (which, as defined by the ADA, could range from anything from depression to dyslexia) or, more important, if the employee can make a case that seems to prove that's why he was not hired, the employer must be able to show that the reasons for not hiring the employee are job related and consistent with business necessity, and that there was no reasonable accommodation that would have made it possible for the individual to perform the essential functions of the job notwithstanding the disability.

Second, even if the tests are not likely to expose ADA-defined "disabilities", many employee assessments venture into areas which are not job related, or which elicit information concerning sex, race, age and other subject areas protected by federal employment legislation. Risks are raised by those tests as well.

Third, even if a test is otherwise compliant, care must be taken in how the test is applied. For instance, testing on math skills might be appropriate for prospective accountants, but not for prospective custodians. The way in which the test itself is administered and used may be viewed as discriminatory.

All of that aside, employee assessment tools can provide employers with valuable information. Consider the following precautions, however, before instituting a procedure:

• Get the appropriate advice on which tests to apply to which employee classifications. Make sure there is a clear understanding within your organization as to why you are testing employees, and what qualifications are relevant to what position.
• Keep the test results confidential. Distribute on a strict "need to know" basis only.
• Track results to determine the effectiveness of the testing. This will help you fend off future legal challenges that the tests do not accurately predict job performance.
• Do not pick and choose which applicants will be subjected to the testing. Apply it to all similarly-situated individuals.
• Use a professional testing service that will take responsibility for the content and application of the tests, and which uses protocols that have already withstood legal challenges.

Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.

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