Nelson Mandela said: I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. But as a matter of fact, discrimination is a reality that arises in many aspects of our lives.

In our industry, the hiring process can become corrupt and biased due to a number of factors such as favoring some applicants based on political and social interference, sex appeal, race, or ethnicity to name a few. The interviewers or hiring teams’ personal preferences may also lead to some form of discrimination while interviewing.

These sometimes unintentional and mostly hidden practices can adversely affect the recruitment process. They also increase the risk of facing legal consequences by compromising the laws of the US equal employment opportunity commission. Above all, you may end up recruiting incompetent and less reliable individuals at the workplace, leading to higher turnover and low productivity.

In order to curtail this issue, conducting pre-employment tests to objectively measure the competency of applicants makes hiring decisions relatively objective, structured, and fair.

But again, while administering these pre-employment tests, one must be careful because certain tests can discriminate one applicant over another.

Pre-Employment Testing Types

To understand the legal issues, let’s first understand what kind of pre-employment tests are out there where legal issues may come into play.

Test TypeDetails
Physical (Ability) TestsTests that measure the physical strength of an applicant such as Muscular Tension Test, Muscular Power Test, Muscular Endurance Test, etc.
Cognitive Ability TestsThese tests involve measuring memory, comprehension, verbal, mathematical ability, problem solving, etc.
Medical Fitness TestsThese tests involve evaluating mental and physical health.
Personality TestsThese tests measure certain personality and behavioral traits of applicants that reveal their strengths and weaknesses.
Language Proficiency TestsAs the name suggests, these tests measure one’s ability to comprehend, speak, read, or write in a particular language e.g., English, Spanish, etc.
Background ChecksThese checks include credit history check, criminal background check, etc.

Let’s look at how certain Equal Employment Opportunity (EEO) laws can apply to these screening tests and how we can avoid legal issues in pre-Employment testing arising out of such circumstances.

Equal Employment Opportunity Laws

Federal laws currently in place to prevent employee discrimination when hiring include:

1. Title VII of the Civil Rights Act of 1964

Under this law, pre-employment tests are legal as long as they are not designed or used to discriminate on the basis of race, color, religion, sex, or national origin..  But sometimes, problems may arise when:

  • A hiring manager / team manipulates scores of one group so that the chances of selection of another group increase / decrease.
  • Some tests are made compulsory for certain individuals /groups, for example criminal background checks for Hispanics or Blacks. This is called disparate treatment.
  • Another form of discrimination in testing could be disguised discrimination also called disparate impact or adverse impact. In this case,  a certain type of test automatically disqualifies a particular group of applicants. For example, a physical strength test requirement may lead to women applicants’ disqualification.

2. Title I and V of the Americans with Disabilities Act 1990

This law makes it illegal to discriminate against a qualified individual on the basis of disability, either physical or mental. Certain acts on the part of the employer during pre-employment testing may result in violation of this law such as:

  • Using a test which screens out people with disabilities.
  • Using a test that is not job-related. For example, a listening test for a person with hearing impairment although his/her job has nothing to do with listening.
  • Testing a disabled person without providing reasonable accommodation. For disabled individuals appearing for tests, it is essential to facilitate them in terms of reserved parking, choosing a space for testing that is easily accessible for these individuals, changing the presentation of testing materials, etc.
  • Conducting a medical examination before a job offer if the job normally does not require a medical fitness test.

3. The Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful to use any such screening tests that discriminate against people who are 40 years of age or older. An example of this is intentionally asking people above 40 for a comparatively difficult test. A company may face legal challenges because of its intention to hire a younger workforce based on their appearance or physical energy, and asking the older applicants for an additional, difficult, or unnecessary test to weed them out.

6 Ways to Avoid Legal Issues in Pre-Employment Testing

Once we know the laws related to legal practices for hiring, we can find ways to avoid legal issues in pre-employment testing. Some effective ways to avoid such legal challenges can be as follows:

1. Test All Applicants Equally while Accommodating the Disabled

Many large businesses have faced consequences for not treating all the candidates, the same way. Add a policy to your hiring process that the same pre-employment test will be administered for all the applicants, and those with disabilities will be provided reasonable accommodation.

Some strategies to avoid discrimination in testing can be:

  • Provide a larger computer monitor that can aid a visually impaired individual.
  • Ask questions verbally to those who can’t write due to paralyzed arm or hand, etc.
  • Conduct a criminal background check for all the applicants irrespective of their race, origin, color, or religion.

2. Conduct Research to Detect and Avoid Adverse Impact

It is important that an adverse impact study is performed internally to detect any discriminatory practices in the hiring process. This becomes essential when a new pre-employment test is put into practice so that both the applicant and the company are protected.

3. Use Third-Party Testing Services

Some tests designed to judge a person’s behavior or personality attributes may put you at the risk of creating an adverse impact. For example, a hiring manager who knows answers to a candidate’s gender or personal preference questions may favor or reject the applicant.

A third-party testing service may help you conduct these tests objectively by allowing you to rate and judge applicants based on overall fitness for the job role rather than personal preferences. Many of these companies offering testing services have already done the research to design their questionnaire to avoid legal issues in pre-employment testing and comply with EEO laws.

4. Ensure Tests are Job-related

Before administering a test for a particular position, assess its need for the position. If you find that a certain test does not help you in analyzing a candidate’s strength to perform a job function, don’t use that test. For example, a software programmer doesn’t need to take a driving test or a physical strength test. If you have any such tests already in practice, revise your pre-employment testing strategy.

5. Validate Your Tests

Employee screening tests should be validated to ensure they conform to the Uniform Guidelines on Employee Selection Procedures (GSP). Validity refers to the degree to which the conclusions drawn from a test are accurate. In simple terms, you must know if this test accurately measures job-related factors that fairly tell something about job performance.

6. Train Your Staff on Equal Employment Opportunity Laws

Your hiring managers, test authors, and test graders should all be well versed with the Equal Employment Opportunity laws. Also, employers in the United States who have their employees in foreign countries need to know how they can tailor their testing to comply with the international (or country specific) rules, regulations, and business practices.

It is also necessary that your HR teams’ understanding related to HR laws is updated from time to time.


It’s no doubt that the pre-employment testing is a reasonable way to reduce the chances of making flawed hiring decisions.  When you hire someone based on certain test results, you anticipate that they will be able to perform their duties in an efficient manner. But these pre-screening tests are sensitive in nature and may subject you to legal challenges in case these tests are not administered according to the U.S. Equal Employment Opportunity Commission (EEOC) laws. Although challenging, the suggestions mentioned in this article can help you play safe and avoid legal issues in pre-employment testing.

 **The content and opinions presented in this article are for informational purposes only and do not constitute legal advice. is not a law firm and is not authorized to provide any legal advice. Please consult an attorney when in doubt.