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Of Course It's Legal,
When Properly Administered.

We're not lawyers, and we don't pretend to be giving legal advice. But the legality of personality profiling and comprehension speed testing is so well established that we can direct your attention to the relevant court decisions without being accused of practicing without a shingle.

There is an old canard that using personality tests and intelligence tests in hiring is not legal. The notion is embraced by those who are paranoid about litigation and by those seeking an excuse to quash the use of such tests for other reasons. The darned falsehood just won't die. In his otherwise interesting article about "Microsoft's IQ Dividend" (Wall Street Journal Business World 7/28/2004) writer Rich Karlgaad unfortunately repeats the notion that a 1971 court decision, Griggs v. Duke Power, "...banished written IQ tests and 'tests of an abstract nature' from job applications." This is an extreme misinterpretation of the decision. IQ tests and tests of abstract knowledge are legal to use as part of your hiring, career development and employee retention programs. Just don't use them as Duke Power did.

The core accusation in Griggs V. Duke Power was that Duke Power was using IQ tests to discriminate against minority job candidates. The court found that this discriminatory use was a violation of the Civil Rights Act of 1964, but the opinion went on to say that the Civil Rights act "authorizes the use of any professionally developed ability test, provided that it is not designed, intended, or used to discriminate." Duke was only giving the tests to black job applicants, not white applicants, and then turning black applicants down based on an unsatisfactory score. Flat out racial discrimination, and Duke Power was correctly found guilty.

The key is to follow simple guidelines that are dictated by ethics as much as by the EEOC:

  • Never use just one screening tool to select candidates, whether the tool is a test, an interview, recommendations or any other selection criteria.
  • Outline your procedures in a formal policy. Everyone involved in the selection process is then bound to follow it.
  • The policy must include a variety of selection tools to avoid selection decisions based on limited criteria, and skills tests must be demonstrably relevant to the job.

  • Whatever screening tools are determined appropriate, all must be used with each candidate at a given level of consideration. The interviewer should not pick and choose. Subsequent court cases have upheld the principle that professionally prepared tests, relevant to the job, uniformly applied in a non-discriminatory way, are allowed. These include:

    WATSON v. FORT WORTH BANK & TRUST, 487 U.S. 977 (1988)
    This case actually involved a charge of discrimination in a situation when there was no testing being done. The Supreme Court's opinion was that:

    "... an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices (interviews) with a subjective component, such as a brief interview, in a system that refrained from making the objective tests absolutely determinative, and could thereby remain free to give those tests almost as much weight as it chose without risking a disparate impact challenge."

    While validation studies, which demonstrate the relationship between a given pre-employment test and job performance, are often a very good idea from a business stand point, the Court also said:

    "The nature of the 'business necessity' or 'job relatedness' defense - under which the defendant has a burden of producing evidence after the plaintiff has made out a prima facie case - also constrains the application of the disparate impact theory. Employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance. In the context of subjective or discretionary decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a 'manifest relationship to the employment in question.'"

    Considering the issue of how well tests relate to job skills, the Court recognizes the prerogatives of an employer:

    "Many jobs, for example those involving managerial responsibilities, require personal qualities that are not amenable to standardized testing but are nevertheless job related. In evaluating claims that discretionary practices are insufficiently related to legitimate business purposes, courts are generally less competent than employers to restructure business practices and therefore should not attempt to do so. Pp. 997-999."

    Many consulting companies, including ours, render a valuable service to business through personality, aptitude and intelligence testing for use in hiring and career development. We would all have shuttered our shops long ago if there were any validity to Richard Karlgaad's assertion in the recent Wall Street Journal.

    As the court said:

    Employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance.

    Some of out clients have, nonetheless, requested validation and we are happy to conduct such a study at any time.

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