Is Pre-Employment Testing Legal?

During the hiring process, candidates may encounter something called a “pre-employment test.” This is a standardized test employers may give candidates to gather information about their job-related capabilities and character traits. Legal, professionally-developed pre-employment tests or assessments can give employers important insights into how the candidate would perform in a given job. Unprofessional, unvalidated pre-employment testing, on the other hand, can lead to employment discrimination and are illegal during the hiring process. Learn the difference to protect your rights.

Understanding the Pre-Employment Test

A pre-employment test is any assessment an employer requests job candidates to submit during the application or interview process, prior to hiring. Over the years, pre-employment tests have become more common due to greater numbers of applicants for job positions. Online job search engines have led to hundreds of people submitting applications for a position – many of which don’t fulfill even the basic requirements of the job. As a result, employers have had to use other means of narrowing down the pile of applications: pre-employment testing.

Although a valid pre-employment test can be an asset to a company, one that asks illegal questions could be a liability. A poorly developed or discriminatory test could expose the company to an employment lawsuit, in which the candidate asserts that the employer engaged in discrimination through an unlawful employment test. It’s important for employers to make sure their screening methods adhere to the law, and for employees to understand their rights and protections from discrimination during the hiring process.

Discrimination and Unlawful Pre-Employment Screenings

It is legal for an employer to issue a test or assessment prior to offering a job position to a candidate. However, the test must fulfill professional standards and have an appropriate intended use; otherwise, the test will not be valid or legal. As a job candidate, you can determine whether a type of pre-employment screening is legal by reviewing what the Equal Employment Opportunity Commission (EEOC) defines as discrimination. Discrimination means to treat a person unfairly who is in a protected class, such as:

  • Race or nationality
  • Sex or gender
  • Sexual orientation
  • Pregnancy
  • Religion
  • Age or disability

A pre-employment test that asks questions about these protected subjects in ways that aren’t relevant to the job (e.g., How old are you? Do you have a disability?) are most likely illegal. The EEOC does not permit employers to ask these types of questions prior to hiring, either during interviews or pre-employment testing. If a test assesses your aptitude, personality traits, or skills with non-discriminatory questions, however, odds are the employer has the legal right to issue the test to job candidates.

Elements of Legal Pre-Employment Testing

A legal pre-employment test is an objective, unbiased way to collect information about a candidate. It should have a professional developer, a reliable means of gaining insights, and validation from a source such as the EEOC. The most common pre-employment tests ask questions about problem-solving and learning abilities, critical thinking, agreeableness, stress tolerance, verbal and communication skills, or industry-specific skills such as typing. In general, these types of tests are legal.

If you aren’t sure whether an employer-mandated pre-employment test is legal, consider talking about your case with a lawyer. An employment lawyer in Los Angeles can help you understand what an employer can and cannot ask during the hiring process. A lawyer may be able to review the test in question and let you know whether it meets accepted standards. If an employer withdrew a job offer, terminated your employment, or chose a different candidate based on your answers to an illegal pre-employment test, you could be eligible for job reinstatement and damages. Contact us for more information.