Employment Screening and Background Checks – Part III

Many employers utilize some form of pre-employment testing to assist them in hiring decisions. A 2000 study by the American Management Association reported that 69% of firms used some form of job skills testing and 33% used psychological testing. 

There are general legal restrictions on the use of pre-employment testing in addition to the general prohibitions on discrimination found in Title VII and the Pennsylvania Human Relations Act. The Uniform Guidelines on Employee Section Procedures prohibit the use of a test or selection process that has an adverse impact on individuals in a protected class unless the test has criterion-related, content and construction validation studies. The validation studies must consist of empirical data demonstrating that the test is (1) predictive of performance of important elements of job performance; (2) contains content which tests important aspects of performance on the job; and (3) consists of procedures that assess identifiable characteristics that have been determined to be important to job performance.

Both the ADA and the Pennsylvania Human Relations Act prohibit the use of "medical tests" prior to an employer extending a conditional offer of employment. A medical test is generally one that seeks information about an individual’s physical or mental health or impairments. Courts examining whether a test is "medical" have looked at the following factors: (1) administration or interpretation of the test by a medical professional; (2) intent of design of the test to reveal a medical or mental impairment; (3) conducting the test in a medical setting; (4) measurement of the individual’s psychological responses to performing a task; (5) necessity of medical equipment to perform the test; and (6) invasive nature of the procedure.

Following is a summary of some of the more popular pre-employment tests employed by businesses to assess applicants:

• Psychological and Personality Tests

Psychological or personality tests are increasingly popular tools used to evaluate prospective employees as well as existing employees.   There is no absolute legal bar to using these tests as long as the administration of the testing is conducted in accordance with the EEOC Guidelines on a non-discriminatory basis, and as long as the tests are not "medical tests" under the Americans with Disabilities Act.

Generally, psychological tests that are designed to identify a mental disorder or impairment are considered medical examinations, but that personality assessments that measure personality traits such as honesty, preferences, and habits are not. Distinguishing the two types is not an easy task and even courts have come to different conclusions. In Karraker v. Rent-A-Center and in Saraka v. Dayton Hudson, courts determined that the Minnesota Multiphasic Personality Inventory (MMPI) was considered a "medical examination" under the ADA because it was designed to reveal mental impairment. As a medical test, the employers who used it as a pre-employment test violated the ADA. On the other hand, in Miller v. City of Springfield, a court determined that the MMPI was an appropriate job-related screening tool that was used by a police department in a manner that was consistent with business necessity.

Pennsylvania courts have considered the validity of an honesty test (the Reid Test) in the context of an employee’s refusal to take the test and whether his refusal constituted "willful misconduct" for the purpose of unemployment compensation eligibility. The court, in Heins v. UCB, determined that the employer’s test requirement was job related even if the test might not have been of the highest reliability. The employee’s refusal to take the test was unreasonable and he was denied unemployment.

• Skills Tests and Functional Capacity Tests

Employers have long used simple job related tests like typing and math tests to assess the skills of job applicants. Intuitively these measures of important job functions have not been widely scrutinized by courts or government agencies. However, as the sophistication of employers has increased so has the "simple" skills test. Today many employers utilize functional capacity tests or work tolerance screening which are job specific tests in which applicants perform some or all of the job functions and are observed and evaluated. While such tests seem intuitively job related, the EEOC takes the position that such tests must meet the Uniform Selection Guidelines described above. In one situation, the EEOC won a lawsuit challenging a work tolerance screening that had a disparate impact on women. The court in EEOC v. Dial Corp., ruled that the strength and lifting test had no demonstrable business necessity and no content or criterion validity.

• Drug and Alcohol Tests

Drug tests to determine the current use of illegal drugs are not considered medical examination under the ADA, whereas blood, urine, and breath analyses to check for alcohol use are.  The significance of this is that while drug testing is permitted before a conditional offer of employment, alcohol testing is permitted only after conditional offer of employment. Other types and circumstances for medical tests and examinations are limited by the EEOC to circumstances described in its Guidance on the Medical Examinations under the ADA

• Polygraph Tests

Employers may not use a polygraph or lie detector test as a pre-employment screening devise under the restrictions contained in the federal Employee Polygraph Protection Act except:

1. To employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation; and
2. To prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments; and
3. To prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employee who had access to persons or property that are the subject of an ongoing investigation.