Workplace Tests and Assessment Procedures May Be Illegal

Written by Robert A. Wiesen

Employers often use tests and assessment procedures to screen individuals for hire and promotion. There are many different types of such tests and procedures, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks.

The use of tests and assessment procedures can help determine which applicants are most qualified for a particular job. However, they also may violate federal, state and local discrimination laws if they are used intentionally to discriminate based on race, color, sex, sexual orientation, marital status, national origin, religion, disability, age or other protected characteristic. Use of these tests and procedures also could violate discrimination laws if they disproportionately exclude people in a protected class, unless the employer can furnish the business justification the law requires.

Last week, the Wall Street Journal reported that the Equal Employment Opportunity Commission is investigating whether personality tests administered by Kroger Co. and Pet Smart Inc. discriminate against people with disabilities. As part of the investigations, EEOC officials are trying to determine whether the tests disqualify people suffering from mental illnesses such as depression or bipolar disorder, even if they have the skills required for a particular job. While EEOC officials will not comment officially on the investigations, the Wall Street Journal quoted EEOC attorney Christopher Kuczynski who has said "If a person's results are affected by the fact that they have an impairment and the results are used to exclude the person from a job, the employer needs to defend their use of the test even if the test was lawful and administered correctly."

Employers and employment attorneys are monitoring the EEOC'?s investigations closely. A ruling against personality tests and assessment procedures would create a precedent exposing many employers to potential litigation, liability and adverse publicity.

If you have any questions about the requirements of the ADA as they relate to leave policies, please contact the author of this article or your Clifton Budd & DeMaria attorney.

About the Author
Robert A. Wiesen
Partner
Robert A. Wiesen has represented management in all areas of labor and employment law for over thirty years. Mr. Wiesen's...
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