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Tests at Work: Your Rights

Being given a test before getting a job offer or a promotion is not an uncommon experience for many workers. Today's employers routinely test applicants in a variety of ways before offering them work, and may also test existing employees before offering them promotions. But employees and applicants should be aware of their rights with regards to tests such as cognitive tests, skill assessment tests, fitness tests, and more. These kinds of tests might be applied equally to all applicants, appear reasonable, and nevertheless break anti-discrimination laws. Other laws also come into play with regards to testing at work, including medical privacy and disabilities laws.

See Pre-Employment Tests, Checking the Credit Information of Job Applicants (Small Business), and FindLaw's Hiring Process section for related content. 

Skills Tests

Testing an applicant before making a hiring decision is a very common practice, but can take many forms. In a common example, an applicant for the position of a secretary might be given a typing test to determine whether or not they are capable of handling the workload of the position. Another job, such as a police officer or fireman, might require certain specific tests of skills, as well.

These types of job related skills tests are generally permissible, so long as they are targeted towards a key function of the job. For example, in the example above, typing is often considered an integral part of a secretarial position and a typing test administered to a job applicant for a secretary spot would likely be legal. On the other hand, testing applicants for a skill entirely unrelated to a position can be illegal, especially if it negatively impacts minorities or other protected groups (which is called "disparate impact discrimination").

Some jobs may have specific physical requirements as part of their description. For example, a warehouse employee might be expected to be able to lift a certain amount of weight. Just like a skills test, however, the test has to bear a clear relationship to the job at issue. For example, if a strength test is to be given, it should not require more strength to complete the test than it does to perform the functions of the job. An employer who does not adhere to this standard runs the risk of facing a discrimination suit if their test eliminates a disproportionate number of one or more of a protected class of job applicants. Additionally, employees with disabilities may be illegally impacted by some of these types of tests, as discussed in more detail in the section on fitness tests below.

Fitness and Health Tests

Similar to physical tests, fitness and health tests are sometimes administered in the workplace. Unlike physical tests of strength or agility, however, fitness and health tests can raise some red flags with respect to employment laws. Primarily, the federal law known as the Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with disabilities and has specific requirements with regards when employers can ask questions or test individuals on their health or any impairments they might have. A few things to note:

  • Employers typically cannot ask questions to job applicants regarding their health or disabilities, or give them a physical test, until a job offer has been made;
  • Once a job offer is made, then an employer can ask that an employee take a physical examination or answer questions about their health or related to disabilities if:
      1) all applicants to that job type are asked the same questions and given the same testing; and

      2) the questions or tests are related to the job and consistent with business necessity.

Last, but not least, just like any other employment practice, these kinds of tests also must avoid disparate impact discrimination on protected groups.

Psychological and Personality Tests

Tests that measure an applicant or employee's psychological profile and personality are even more concerning. These tests, by their very nature, can be vague and subjective in results. If these tests have a disproportionate impact based on race, religion, sex, or national origin, an employer will have to show that the test or practice is job-related and consistent with business necessity. Also, unlike the types of tests listed above, it is usually not as easy to correlate psychological and personality tests to a particular job function.

Cognitive Tests

Some of the most popular tests administered before or during employment involve cognitive tests, or those that evaluate such things as an individual's verbal, written, and math skills. Although not uncommon, and typically not discriminatory in an obvious way, these tests still can sometimes illegally impact groups of workers and job applicants by discriminating against particular classes. If a test ends up having a disproportionate negative impact on a particular group of individuals, employers need to explore alternative ways of testing to see if they can still evaluate employees for the job without having such an adverse effect on the group.

Drug Tests

Drug testing at work, for the most part, is governed by each state's own laws. In most states, drug testing is permitted once an employee has been offered a job. That said, there are limits on how and when such testing may be conducted, and applicants and employees must be treated equally for testing. An employer cannot pick and choose which applicants to test, or it risks claims of discrimination.

If you suspect that a certain test or practice used in the workplace is discriminatory in nature or is breaking the law in another way, it may be best to contact the local EEOC office or state equivalent, or an experienced local employment law attorney.

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