Question: What are the legal restrictions associated with screening candidates through the use of psychometric and psychological testing and how can employers mitigate risks?
Answer: Employers are legally allowed to pre-screen applicants and narrow the candidate pool by using psychometric and psychological testing. There are many different types of tests employers can give, such as medical and physical abilities tests. However, for the purposes of this question, we will focus on psychometric and psychological tests.
There are many legal ramifications that come with asking applicants to take a test. It’s important for employers to understand how to make tests legally compliant and mitigate risks associated with the use of these types of tests.
Here are a few things employers should keep in mind:
Prohibited grounds of discrimination: The tests must comply with applicable Canadian human rights legislation. Employers should not discriminate on the basis of a prohibited ground such as race, ethnic origin, sex, creed or disability.
Bona fide occupational requirements: If employers are going to discriminate on the basis of a prohibited ground, they must be able to prove it was based on a bona fide occupational requirement for the job.
Employers should ensure the purpose of the test is rationally connected to the actual job requirements. They must also be able to show testing was used in good faith and it was necessary to test candidates to achieve a work-related purpose.
Systemic discrimination: Systemic discrimination denies members of certain groups opportunities because of established practice and procedure in a company. For example, tests that use English or French idioms may negatively bias those for whom English or French is not their first language. Caution must be exercised in using tests to ensure they accommodate those from different cultures, women and persons with disabilities to the point of undue hardship.
The recent decision in DM v. Toronto District School Board (TDSB) is a good example of when employers are required to consider accommodating a job candidate during the testing process. In this case, the complainant argued he was discriminated against because of his disability by being required to attend a literacy and numeracy screening test. The complainant advised TDSB that, because of his learning disability and the fact he had attention deficit disorder, he would need a calculator and a separate room to write the test.
The TDSB refused his request and the matter appeared before the Ontario Human Rights Tribunal. The board determined the TDSB had discriminated against the complainant and contravened the province’s Human Rights Codeby not providing the necessary accommodation.
Consent: Employers should obtain written consent from applicants before conducting any pre-employment testing.
Standardize process: The selection process must treat all applicants for a given position in the same manner. The recruiter should ask the same questions, in the same manner and under similar conditions. Any assessments should be administered at the same point in the selection process. Having a formal policy on testing and interviewing procedures will help ensure the standardization of the testing process.
Professional testing service providers: Employers are encouraged to use the expertise of professional testing services. Although an organization can create and administer its own tests, there are many advantages to using a professional testing service provider.
Generally, testing providers are in the best position to determine what questions and types of tests meet the employer’s needs. They will also be familiar with the legal aspects of asking certain types of questions.
Before approaching a testing provider, employers should know what information they want from the test and ensure it is related to the position being filled.
Employers also need to educate themselves about testing. They should ask the testing provider for information about how the test was developed and investigate its reliability and validity — employers need to be informed test purchasers.
Privacy and confidentiality: Employers need to consider: how the test is administered; who will access the results; who will interpret the results and if they are qualified to do so; when and how feedback will be provided to the candidate; how the test results will be used; what procedures are in place to protect the confidentiality of the results; and how the completed test will be stored.
These considerations should be incorporated into the organization’s employment policies and procedures.
Conditional offer of employment: Some government sources recommend employers administer tests such as psychometric and psychological tests only after a conditionaloffer of employment is extended and accepted.But this could reduce the efficacy of such tests as screening tools if only those candidates selected for conditional offers are tested.
At that point, it may also become necessary to reject a candidate solely based on testing results — something that is difficult to justify given test scores should be looked at holistically, along with all of the other factors, in determining suitability for a job.
Above all, employers should be aware there are several legal pitfalls in asking candidates to undergo pre-employment testing, and the jury is still out on whether or not they accurately predict future performance.
Yaseen Hemeda and Joan Sum are HR product writers for Consult Carswell, an online HR work solution that delivers best practices, legal compliance, news, articles and a suite or ready-to-use tools. For more information, visit www.consultcarswell.com.