Deeper,
Firstly, please be aware that Google Answers is not a substitute for
real legal advice. I can point you in the direction of articles and
online information that can guide you in your research of this
subject, but I am not a lawyer and have no legal training. After
reading the information that I'm providing you with, I advise you to
contact a real lawyer with experience in employment law.
I think the best place to start is with the following quote from nolo.com:
"There are no hard and fast rules about whether a particular test is
legal -- courts generally decide these issues on a case-by-case basis,
looking at all the facts and circumstances. For the most part,
employers can stay out of trouble by using simple common sense. An
employer who inquires into an employee's sex life or personal beliefs
probably crosses the line, while an employer who tests only for
necessary job skills is probably on safe ground."
You can read the entire article at [
http://www.nolo.com/lawcenter/ency/article.cfm/ObjectID/85651408-8E71-46D6-A9D50D450F82F6ED/catID/30960BF5-6C25-44B9-992E83CC50D5B17A
]. This article deals with all kinds of testing, including medical
exams, psychological tests, drug tests, and lie detector tests.
Regarding psychological tests, the article does not deal with specific
court cases or legal issues but does imply that psychological tests
may not be the best idea without a compelling reason to use them:
"Some employers use pencil and paper psychological tests to attempt to
predict whether an employee will steal, fight or engage in other
negative conduct in the workplace. There are two problems with using
such tests. First, it is heavily disputed whether these tests can
accurately predict an employee's future conduct. Second, many of the
test questions are highly intrusive and invade the employee's privacy.
For the most part, employers would be well-advised to steer clear of
psychological tests absent some compelling justification."
Most employers would love to give a single test that could instantly
gauge employee reliability, honesty, aptitude, and social skills.
Wouldn't it be nice to just give the job to the employee with the
highest score on a perfectly objective test instead of relying on more
subjective methods like interviews and references? The problem is that
very few of these tests are completely reliable, and many may ask
questions or test skills that are not necessarily relevant to the job
that the individual is applying for.
Your question refers to a "psych test for pre-employment screening."
The literature that I have found refers to overlapping categories of
"psychological," "personality," and "honesty" tests. What one web site
may refer to as a "psychological" test, another may refer to as a
"personality" test. Therefore, it is probably best to search for law
examining all three of these in order to get the best answer.
Regardless of the name of the test, the literature I have read thus
far is very clear on one point: If there is any reason that the test
could be considered a "medical" test, then the "Americans with
Disabilities Act" may apply, and you should proceed with a large
amount of caution. This is the area of the pre-employment testing
field where you will find the greatest agreement on the subject.
Violations of the ADA may be handled very seriously and could
potentially open the door for employment litigation against you. If
the purpose of the psychological test is to uncover some type of
mental illness, then it could very easily be considered a medical
test. If the specific purpose of the test is not to discover mental
illness, but the test itself is designed or interpreted by a medical
professional, there may also be legal consequences. These is not the
only circumstance where a psychological or personality test might
infringe upon the ADA, so be very careful in administering these types
of tests.
An article on FindLaw briefly discusses how a psychological test may
fall under the definition of a medical examination:
"A psychological test is designed to reveal mental illness, but a
particular employer says it does not give the test to disclose mental
illness (for example, the employer says it uses the test to disclose
just tastes and habits). But the test also is interpreted by a
psychologist, and is routinely used in a clinical setting to provide
evidence that would lead to a diagnosis of a mental disorder or
impairment (for example, whether an applicant has paranoid tendencies,
or is depressed). Under these facts, this test is a medical
examination."
[ http://library.lp.findlaw.com/articles/file/00053/005528/title/Subject/topic/Employment%20Law_Employee%20Privacy/filename/employmentlaw_2_2864
]
(I will come back to the remainder of that article later in this
essay, so I can summarize it in more detail.)
The US Government's home page for the ADA is located at [
http://www.usdoj.gov/crt/ada/adahom1.htm ]. There is a huge amount of
information available here, though the organization of information on
these pages leaves a bit to be desired. Some of the more relevant
information I have taken from this site, its sub-pages, and links
include:
From the Equal Employment Opportunity Commission (EEOC):
"Employers may not ask job applicants about the existence, nature, or
severity of a disability. Applicants may be asked about their ability
to perform specific job functions. A job offer may be conditioned on
the results of a medical examination, but only if the examination is
required for all entering employees in similar jobs. Medical
examinations of employees must be job related and consistent with the
employer's business needs."
[ http://www.eeoc.gov/types/ada.html ]
From "Americans with Disabilities Act Questions and Answers" :
"Q. What limitations does the ADA impose on medical examinations and
inquiries about disability?
A. An employer may not ask or require a job applicant to take a
medical examination before making a job offer. It cannot make any
pre-employment inquiry about a disability or the nature or severity of
a disability. An employer may, however, ask questions about the
ability to perform specific job functions and may, with certain
limitations, ask an individual with a disability to describe or
demonstrate how s/he would perform these functions. [...]"
[ http://www.usdoj.gov/crt/ada/q%26aeng02.htm ]
You should also be aware that while the ADA may set a minimum standard
in the United States, each individual state is also permitted to craft
its own laws on the subject of employment law, disability law, and
job-related testing.
Spencer Stuart, an executive search firm, has a legal
question-and-answer page at [
http://www.spencerstuart.com/ArticleViewer.aspx?Type=AR&PageID=10020&ArtID=884774
] which briefly explains potential legal issues regarding the ADA,
general law regarding employment discrimination, privacy law, and
psychological testing. (Scroll down to Question 5. The other questions
are not relevant.):
"Question 5:
My advertising agency has been less than satisfied with recent hires
into our management training program. We would like to include, as a
part of our interview process, a requirement that all candidates for
its management training program undergo a psychological analysis to
determine their their multi-tasking capabilities, as well as their
capacity for overcoming stress . What are the pitfalls of including a
psychological test as part of the interview process? What if a prized
candidate adamantly refuses to take the test, but we want to hire
him/her anyway?
Answer:
The use of psychological tests as a part of an employer's interview
process may have significant legal consequences. Due to the risks
involved in using such tests, employers should proceed cautiously in
utilizing them."
The article lists 3 major problems with psychological testing:
"First, in many states, the use of psychological tests during the
interview process implicates employees' right to privacy. [...]"
"Second, the use of psychological tests may implicate federal and
state anti-discrimination statutes. [...]"
"Lastly, the Americans with Disabilities Act (ADA) presents another
obstacle to psychological testing. [...]"
The Spencer Stuart article concludes with a warning that "Employers
may wish to consider alternatives to psychological evaluations. The
thrust of the law, whether in the area of privacy, equal employment
opportunity or the ADA, focuses on job related inquiries and away from
any other kinds of inquiries that cannot be proven to be predictive of
success in a specific job. [...]"
Nolo.com, which I referenced at the beginning of this essay, also has
a page devoted to pre-employment testing of applicants at [
http://www.nolo.com/lawcenter/ency/article.cfm/objectID/8671B547-F9BD-4405-964D7DD2F5573019
]. They also have a page which lists "good" and "bad" questions that
an employer may ask under the ADA at [
http://www.nolo.com/lawcenter/ency/article.cfm/objectID/70980BA4-7332-4847-B5C3FA3837DC4E26
]. You should read these pages in their entirety, but I will give a
quick summary here:
* "Avoid tests that reflect impaired mental, sensory, manual or
speaking skills unless those are job-related skills that the test is
trying to measure." You must accomodate disabilities when possible.
* Multiple choice personality tests may be very risky because they
could delve into the parts of a person's private life that are
entirely irrelevant to the job.
* Polygraph tests are illegal except under very rare circumstances.
* Honesty tests that do not use polygraphs frequently violate federal
and state privacy and discrimination laws.
David Schaffer and Ronald Schmidt discuss many of these issues in
their article "Personality Testing in Employment" on FindLaw at [
http://library.lp.findlaw.com/articles/file/00053/005528/title/Subject/topic/Employment%20Law_Employee%20Privacy/filename/employmentlaw_2_2864
] (I referenced this article earlier in this essay regarding whether
or not a psychological test is a medical test under the ADA.) The end
of this page mentions that the authors "work closely with experts in
the fields of statistics, labor economics, and
industrial-organizational psychology in defending employment and civil
rights class action suits throughout the country." Based on this
blurb, and the contents of this essay, I would guess that the authors
are most interested in empowering employers to legally use various
testing methods in the course of screening and hiring new employees.
The facts and figures presented in this essay generally show how
pre-employment psychological, personality, and honesty testing may
provide valuable insight to employers. (This appears to contradict
some of the information on other web pages I quoted above about the
usefulness of testing.) The legal concerns discussed in the article
are:
* "Title VII. Under Title VII of the Civil Rights Act of 1964, it is
unlawful for an employer to fail or refuse to hire any individual, or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of race, color, religion, sex, or national origin."
* "Disparate Treatment." -- all employees must be tested equally.
* "Disparate Impact." -- are groups affected more than others?
* The ADA.
* Privacy. "Although the U.S. Constitution has no applicability to
private employers, public employers must comply with its requirements,
and some states such as California, have applied such privacy
standards to private employers. The lower courts have recognized the
constitutional right to privacy protects public employees. Thus, test
questions administered to public employees must not be unreasonably
intrusive and must be job-related."
Schaffer and Schmidt conclude with the following:
"Although there are real benefits to using personality or integrity
tests in employment, employers should carefully weigh the risks and
benefits. It may be helpful to consult with an
industrial-organizational psychologist and an employment attorney.
Industrial-organizational psychologists can provide critical
information related to test validity as well as utility analyses that
show how testing would impact the company's profitability and
efficiency. An experienced employment lawyer can alert employers to
potential problems and refine their employment selection policies and
procedures to minimize their exposure to liability."
FindLaw has yet another good article on the subject written by Daniel
Long at [ http://library.lp.findlaw.com/articles/file/00312/009031/title/Subject/topic/Employment%20Law_Employee%20Privacy/filename/employmentlaw_2_2864
]. This article deals with many of the same issues that I have already
discussed above, so I won't summarize, but it is certainly worth your
time to read this and see another opinion on the same topic. Long also
cites many more actual court decisions than any of the other essays
that I have quoted above. So, if you want to do your own research and
read through case law, Long's essay is fantastic as a jumping off
point.
Here are some papers written from the perspective of mental health
professionals on the subject of psychological testing and some of
their applicability to employment decisions. While these many not be
legal documents, the people who wrote these are likely senior enough
in their fields that their opinions might be taken seriously by a
court were they (or people of similar caliber) available to testify in
an employment discrimination case:
Paper by the American Psychological Association on psychological testing
[ http://216.239.39.104/search?q=cache:pDc1LnBddEsJ:www.apa.org/science/tuq.pdf++%22Task+Force+on+Test+User+Qualifications%22&hl=en
]
The International Public Management Association for Human Resources --
Assessment Council [ http://www.ipmaac.org ] has published a short
critique of the APA article on testing at [
http://www.ipmaac.org/acn/dec99/testuser.html ]. It may be worth
browsing IPMAAC and IPMA-HR's pages, which likely have even more
information on these topics.
Finally, I recommend that you read the headline article in the New
York Times' Magazine Section of Sunday, July 18th, 2004. The article
did not deal directly with giving psychological or personality tests
to job applicants, but did showcase a few individuals who have
attempted to deal with Attention Deficit and Hyperactivity Disorder
(ADHD) while working. Some of these people informed their supervisors
of the diagnosis and asked for assistance and accomodation that they
believed to be required under the law. The main case followed through
the article is that of a librarian whose condition resulted in
inappropriate outbursts and comments in addition to poor performance
on the job. While this article may not speak directly to your
question, it will probably give you insight into how workplace
environments deal with people who have certain psychological
disorders, and what remedies are available to both the employee and
the employer.
Unfortunately, this article is no longer available for free on the
NYTimes web site. Some other newspapers appear to have licensed the
content (for example, here: [
http://www.hendersonvillenews.com/apps/pbcs.dll/artikkel?SearchID=73179848485864&Avis=HT&Dato=20040719&Kategori=ZNYT04&Lopenr=407190340&Ref=AR
]), but if that page is no longer available and you're willing to
spend a few extra dollars, you can purchase it at [
http://query.nytimes.com/gst/abstract.html?res=F70A1EF73A5F0C7B8DDDAE0894DC404482
].
In conclusion, the main laws you need to look out for are the
Americans with Disabilities Act (ADA), Civil Rights / general
employment discrimination issues, and privacy issues. Any one of these
can be a pitfall if you are not careful. It is difficult to draw a
"fine line" between legal and illegal, since I suspect that case law
may offer different approaches. In addition, different states may have
very different laws on the subjects, and you need to research the law
of your particular location. Most articles have general agreement that
the ADA can make psychological testing a legal minefield unless legal
and psychological professionals are first consulted to come up with a
good test.
I hope that this has been useful to you. Please feel free to ask for clarification.
Search Strategy:
employment + law + "psychological test"
[ ://www.google.com/search?as_q=employment+law&num=100&hl=en&ie=UTF-8&btnG=Google+Search&as_epq=psychological+test&as_oq=&as_eq=&lr=&as_ft=i&as_filetype=&as_qdr=all&as_nlo=&as_nhi=&as_occt=any&as_dt=i&as_sitesearch=&safe=images
]
/ephraim |
