PACIFIC COAST LABOR & EMPLOYMENT CONFERENCE - April 28, 2017 - Legal Issues in the Use of Pre-Employment Testing - background and legal challenges

Sep 18, 2026

Uploaded by Marry

Legal Issues in the Use of Pre-Employment Testing addresses how pre-employment and promotion tests are defined, how they have evolved, and what limits exist in their workplace-predictive value. It explains that correlation rates have not improved substantially and discusses why employers have nevertheless increased testing. The paper also analyzes the risk that tests can function as discriminatory screening tools, outlines major test types, and describes legal challenges under Title VII, the ADA, and the ADEA, including disparate impact and disparate treatment theories.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages18

Reading Time45 min

AccessFree to download

Background on Pre-Employment and Promotions Testing

Definition and rationale for testing

Limits in validity and predictive value

Growth in testing and contributing factors

Discriminatory screening concerns

Types of Pre-Employment Tests

Legal Challenges to Potentially Discriminatory Tests

Statutory frameworks: Title VII, ADA, ADEA

Disparate impact vs disparate treatment

PACIFIC COAST LABOR & EMPLOYMENT CONFERENCE Seattle, WA April 28, 2017 LEGAL ISSUES IN THE USE OF PRE-EMPLOYMENT TESTING Christine E. Webber 1 Cohen Milstein Sellers & Toll PLLC 1100 New York Ave., NW Suite 500 Washington, DC 20005 (202) 408-4600 [cwebber@cohenmilstein.com](cwebber@cohenmilstein.com) I. BACKGROUND ON PRE-EMPLOYMENT AND PROMOTIONS TESTING A. A test is “a standardized series of problems or questions that assess a person’s knowledge, skills, abilities, or other characteristics,” in this context for use in hiring or promotion decisions. [http://www.siop.org/workplace/employment%20testing/overview.aspx](http://www.siop.org/workplace/employment%20testing/overview.aspx). B. Pre-employment testing, which dates back to 1919, has become a prominent tool in the employment sector as a way to help organizations decide systematically—and, in theory, more accurately—which applicants will perform well in the job and remain with the company. To this end, testing has the capacity to be a costeffective, consistent, and potentially useful tool, if the test is developed and applied accurately. C. However, correlation rates seen today are no better than those found in the 1960s, suggesting that even with the social-science developments over the past 50-plus years, we’ve been unable to enhance workplace-predictive measures. A study published by the Cornell HR Review found, for example, that personality tests accounted for only about 5% of employment success. See [http://www.cornellhrreview.org/personality-tests-in-employment-selection-use](http://www.cornellhrreview.org/personality-tests-in-employment-selection-use)with-caution/; see also Frederick P. Morgenson et al., Reconsidering the Use of Personality Tests in Personnel Selection Contexts, 60 Personnel Psychol. 683, 694-96 (2007) (discussing poor validity rates for personnel tests) . D. Despite the limited support for test usefulness, there has been an increase in preemployment testing used by employers. The EEOC reported an increase in testing due to increased security concerns after 9/11, and increased concerns about workplace violence scares, as well as the proliferation of online application procedures which generate larger applicant pools. 1 Miriam Nemeth of Cohen Milstein provided substantial assistance with preparation of this paper. 2232710.1 [https://www.eeoc.gov/policy/docs/factemployment_procedures.html](https://www.eeoc.gov/policy/docs/factemployment_procedures.html) E. Pre-employment tests also have the potential to serve as discriminatory screeningout tools to prevent minorities, women, disabled individuals, and older workers from participating meaningfully in our economy and must be carefully scrutinized to ensure that they provide equal opportunities for employment to all applicants. F. Types of Pre-Employment Tests 1. Physical tests, such as ability tests for firefighters, hearing tests for commercial drivers, or drug tests used in positions affecting public safety. 2. Cognitive tests, which are often administered in writing, see, e.g., Kerner v. City & Cty. of Denver, No. 11-00256, 2015 WL 5698663, at *1, *3-4 (D. Colo. Sept. 29, 2015) (evaluating the alleged disparate impact of a test), but which may also include simulations or assessment centers. 3. Personality tests have been developed more recently. For example, these tests may measure honesty, dependability, stress tolerance, approaches to conflict resolution, emotional stability, openness to new experiences, and other traits related to workplace interactions or working styles. a. These tests include formal measures, such as the NEO-Personality Inventory, Personality Characteristics Inventory, Hogan Personality Inventory, as well as tests commonly used in clinical mental health settings, such as the Minnesota Multiphasic Personality Inventory (MMPI) . [http://www.cornellhrreview.org/personality-tests-in-employment](http://www.cornellhrreview.org/pers

FAQs

What does the paper identify as the purpose of pre-employment and promotion testing?

It describes tests as standardized series of problems or questions used to assess knowledge, skills, abilities, or other characteristics for hiring or promotion decisions. The paper frames testing as a systematic method intended to help employers decide more accurately which applicants will perform well.

Why does the paper question how effective pre-employment tests are at predicting job success?

It notes that correlation rates today are no better than those found in the 1960s, indicating persistent limits in improving workplace-predictive measures. It also cites research suggesting personality tests explain only a small portion of employment success.

Which laws does the paper say may be used to challenge discriminatory pre-employment tests?

It states that challenges may be brought under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). It also explains that disparate impact and disparate treatment theories can be used, with disparate impact more common for screen-out claims.

Sep 18, 2026

Uploaded by Marry