Weeding out unacceptable candidates ordinarily begins with the advertisement (“the best need only apply,” and other such phrasings). But, the employee screening process continues well after the classifieds, with applications, interviews and with the last line of defense: employment testing. Far from simply ascertaining which potential employees indulge in illicit drugs from time to time, employment screening can be as pinpointed as blood sampling and as vague as psychological questions (name a time when you were angry). But, before employers begin firing questions to those in the hot seat, legal questions and qualms should be put to bed.
First, employmentscreening dances a precarious line between legality and illegality. For instance, potential workers with disabilities cannot be discriminated against, making certain testing methods unfair and therefore against the law. This is an important concept to grasp, along with understanding the overall ambiguity of the situation. For instance, say you’re hiring a typist—it is perfectly reasonable to issue a typing test to applying candidates. And, while a man or woman without the use of his or her hands might find this exam challenging, if not impossible, it is legal. In other words, despite discriminating against those without deft hand motion, this situation falls into the legal side of employment testing—since employers are specifically screening for a particular and vital skill set.
But, take this instance: say, you issue an exam for eyesight in an industry that doesn’t necessarily need perfect vision. Let’s narrow down this example: say, a blind individual is applying for a sales position in a department store. Will sight help in this occupation? Undoubtedly. Is sight vital? No, it is not. Therefore, employers cannot test along these lines, since you are potentially discriminating against workers with disabilities.
Drug tests continue to be a hotly contested form of employment testing. With some high schools subjecting athletes to routine medical examinations, drug testing is becoming the norm for corporations and businesses eager to screen out prospective employees. The status quo supports this practice, in terms of legality—so employers should feel free to conduct such forms of employment screening (although the possible hiccup of medicinal marijuana could eventually toss a wrench into this situation). Drug testing, on a mass scale, however, is quite expensive—a fact that deters many small businesses and larger corporations with significant and frequent employee turnaround.
For small businesses, any type of testing being considered (other than exams which ascertain a necessary skill set—remember the typing test example) should first be vetted by an experienced attorney, since a discrimination suit could potentially be filed in direct response to tests you or your business issue. In other words, caution is the order of the day with regards to employment testing. Some areas are common sense (not proctoring a test that blatantly favors men or Caucasians), others are a touch bit murkier (eyesight exams or medical tests that ascertain range of motion or strength)—and murky means seeking the advice and help of professionals, since your business and livelihood could be at stake. Remember: If you fail to provide employment screening that adheres to anti-discrimination laws, you could be the one out of a job.
By Jean-Pierre Lacrampe