Are you using pre-employment tests as part of the interview process?

If your company uses pre-employment tests to screen individuals in an attempt to find the best candidates during the interview process, then Target Corporation's payment of $2,800,000 to the EEOC might catch your attention.  The EEOC announced yesterday that the retail giant agreed to resolve its dispute with the EEOC over whether the test questions and results worked against candidates based on their sex, race, and disability status.

The specific test or questions were not made public because Target resolved this dispute before litigation was filed, but Target's decision to pay such a significant amount makes it clear that there were questions that created concern over whether they discriminated against candidates based on their race and sex.  Additionally, some of the questions constituted psychological assessments and were therefore considered a pre-employment medical examination that violated the ADA.

Many employers who use these types of test to identify strong candidates may be unknowingly discriminating against individuals based on race, gender, religion, and disability.  The questions typically do not on their face constitute discriminatory questions, but the answers to those questions and how they affect the score or rating on the test can sometimes have a disproportionate or disparate impact on members of a particular sex, race, or religion, or those with disabilities.  If your company uses pre-employment tests during the interview process, they should avoid any questions relating to physical or mental health, and should be reviewed by an employment attorney to determine whether the answers to any of the questions could have a disproportionately adverse impact on members of a protected class.

law-in-the-workplace