Employers looking for staff members use pre employment tests as a tool to help them find the best person for an available position. While this may seem like a reasonable goal, employers need to exercise a certain amount of caution to operate within the guidelines set out by the Americans With Disabilities Act ("ADA") when it comes to asking prospective employees to undergo tests.
The Americans With Disabilities Act
The provisions of the Americans With Disabilities Act apply to employers with 15 or more employees, including private companies, government departments, labor unions, and employment agencies.
Definition of Disability
The ADA defines a person with a disability as someone with one of the following conditions:
- An impairment (physical or mental) that limits "one or more major life activities"
- Has a record of their impairment; or
- Is known as having an impairment
Accommodations for People with Disabilities
By law, an employer is required to make reasonable accommodations for employees or potential employees who have disabilities, up to the point of hardship. The term "reasonable accommodations" means adjustments made so that a person with a disability has the same employment opportunities as an individual who is not disabled.
Types of Pre Employment Testing Used
There are several kinds of pre employment tests used as part of the hiring process. Here are some examples:
A good example of a skills test is asking an applicant who is being considered for an office administration position to do a typing test. These kinds of tests are considered legal as long as they are being used to measure a skill that is necessary for the job opening in question.
Under the provisions of the ADA, an employer cannot request that a job applicant undergo a medical exam or answer questions about his or her medical history before an offer of employment is made. After a person has been offered a job, they can be asked to undergo a medical exam, provided that every person who receives an offer of employment has to do the same.
Aptitude Tests or Personality Tests
These types of tests are sometimes used to determine whether the applicant has the necessary talents or desired character traits to do a particular job. These kinds of tests can present a problem for employers to administer, since they may be considered discriminatory.
For example, if an aptitude test contains multiple choice questions, it may be considered a vehicle for measuring how well a person is able to take a test, rather than their abilities to do the job they are applying for. If a personality test delves into an individual's religious beliefs or other personal information, it may be considered discriminatory.
Lie Detector Tests
Most private employers are prohibited from asking a job applicant or an employee from submitting to a polygraph examination according to the provisions of the Employee Polygraph Protection Act (EPPA). Job applicants cannot be discriminated against if they refuse to take a polygraph test. Some types of employers are exempt from this rule, however:
- Security companies, including armored car, alarm, and guard services
- Pharmaceutical companies, including manufacturers and distributors
In situations where an employer is permitted to administer a polygraph examination to a job seeker, there are strict regulations that must be adhered to about the test is conducted. The examiner must be licensed and bonded (or have appropriate professional liability insurance in place). Sharing access to any information gathered as the result of a polygraph test is strictly prohibited.
A person who is using illegal drugs is not protected by the provisions of the ADA if the employer makes a hiring decision based on this information. The law surrounding pre employment testing for drug use varies by state. For a list of Department of Labor offices by state, please click on this link.