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EEOC Issues Guidance on Applicant & Employee Testing

Employers commonly use testing in an effort to determine qualified applicants. Before doing so, however, employers should ensure that any tests comply with the law. If an employer’s test discriminates against a particular group of employees, an employer could be subject to a disparate impact discrimination claim. Thus, it is important to learn about what practices might be discriminatory against certain groups of employees before instituting a testing policy.

On December 3, 2007, the Equal Employment Opportunity Commission (EEOC) issued a new "Fact Sheet" on tests and selection procedures used to screen applicants and workers. The fact sheet describes common types of employer administered tests and selection procedures used in the 21st century workplace, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks. The document also focuses on "best practices" for employers to follow when using employment tests and other screening devices, and it cites recent EEOC enforcement actions. Discriminatory employment tests and selection procedures are prohibited by Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act -- which are all enforced by the EEOC.

While the Fact Sheet isn't as detailed as others the EEOC has issued and although it doesn't establish any new law in this area, it does provide a nice summary of the current state of the law and provides an insight for the employer on the EEOC's thinking regarding applicant and employee testing. Furthermore, the EEOC reminds employers that tests and testing procedures should only be adopted by individuals who have an understanding not only of the advantages of a given test but also of its limitations.

If you wish to review the fact sheet, it can be located on the EEOC’s website at If you currently test employees, or are considering testing employees, you should review its content. If you have further questions, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.



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