Inquiries are Limited to Job-Related Skills and Qualities

While a manager’s “gut instinct” might work when choosing which candidate to hire, it might not.   Employing an individual who makes a seemingly great first impression in an interview but who turns out to be a dud or hell-on-wheels once in the stress of the working environment can be a very expensive mistake.

Pre-employment testing on job-related qualifications and capacities, conducted within the limits of the various disability discrimination laws, California’s privacy protections, and other applicable requirements can help employers better understand and predict the physical abilities, mental acuity, temperament and communication skills of their job candidates.

The applicable law includes:

(1) The federal Americans with Disabilities Act (ADA) and its California counterpart, the Fair Employment and Housing Act (FEHA), prohibiting discrimination against those with physical or mental disablities;

(2) California’s strong constitutional and other legal protections against private business’s intrusion into personal privacy;

(3) California’s prohibition against political “coercion” in the workplace;

(4) California’s prohibition on the use of lie detectors “and similar tests or examinations”; and

(5) The federal and state laws prohibiting discrimination in employment on the basis of “protected classifications,” including gender/sex, race, color, national origin, religion, age (40 or more years old), and several others.

In essence, a hiring company must ensure its pre-employment testing regimen limits inquiry to a candidate’s abilities and traits directly related to the job and working environment at issue. Employers cannot ask irrelevant and improper questions about an applicant’s personal life or his or her otherwise unknown membership in a protected classification, including, for example, race, national origin, sexual preference, religion, or mental or physical disability.

Of course, clear-cut application forms and policies on employment screening, hiring, training and a regular review of any testing line-up with the help of an experienced labor and employment attorney are common sense.