This section discusses all pre-employment tests other than physical examinations and drug and alcohol tests. Under current law, a Minnesota employer may require an applicant to take a non- medical pre-employment test before the applicant receives a job offer. Such a pre-employment test must not be given for the purpose of discriminating against any protected class, and it also must meet the following criteria:
- The test must measure only essential job-related abilities.
- The test must be required of all applicants for the same position regardless of disability (except for tests authorized under workers’ compensation law).
- The test must accurately measure the applicant’s aptitude, achievement level or other relevant factors and may not reflect the applicant’s impaired sensory, manual or speaking skills except when those skills are what is being tested.29
The above criteria also apply to employers subject to the Americans with Disabilities Act. If a pre- employment test tends to screen out individuals with disabilities on the basis of those disabilities, the ADA requires that the test be job-related and consistent with business necessity.
Employers testing applicants with impaired sensory, manual or speaking skills (when those skills are not what is being tested) must reasonably accommodate those applicants in the testing process. Such reasonable accommodation may mean, for example, giving an oral test to an individual with dyslexia or providing extra time to take a test to a person with a visual impairment or learning disability.
Employers who employ at least 15 employees during each of 20 or more calendar weeks in the current or preceding calendar year must also comply with the federal Equal Employment Opportunity Commission (EEOC) Guidelines for tests and other selection procedures which are used as a basis for any employment decision. Employment decisions include, but are not limited to, hiring, promotion, demotion, membership (for example, in a labor organization) referral and retention.30 Under the EEOC Guidelines, an employer may be called upon to prove that its test does not discriminate on grounds of race, color, religion, sex or national origin. A selection rate for any race, sex, or ethnic group which is less than 80 percent of the selection rate for the group with the highest rate will generally be regarded by the federal enforcement agencies as evidence of adverse impact. The EEOC published an Enforcement Guidance on Employment Tests and Selection Procedures in December 2007 that provides technical assistance on some common issues relating to federal anti-discrimination laws and the use of tests and other selection procedures in the employment process.
If the employer cannot show that its test has no adverse impact on protected groups, then it will be required to prove that its test is job-related and does not in fact discriminate. The methods of proof required at this point are beyond the scope of this Guide.
Any employer conducting a pre-employment test should be able to demonstrate that the test truly measures essential job-related abilities and individual characteristics. Unless the test is obviously job-related (i.e. to a layperson), such as a word processing test for an applicant applying for an administrative position, an employer may want to consult an expert familiar with the particular test under consideration to make sure that these standards are met. Reliance on expert advice may demonstrate an employer’s good faith effort to comply with the requirements of the law.
Employers should not rely solely on pre-employment tests in making hiring decisions. Other hiring criteria should include the interview, relevant experience, education, availability, employment history and references.
An employer who conducts pre-employment tests should keep detailed records with regard to all testing and should monitor its hiring decisions based on the data which it accumulates. All test results should be kept strictly confidential.
All tests should be administered and scored in a nondiscriminatory manner. Tests should be given in the same environment for all applicants, and all applicants should be given the same equipment to perform the tests.
Timing an applicant’s performance of a job-related task (e.g., typing) would be a non-medical test; however, measuring an applicant’s physiological state–such as blood pressure or heart rate– following performance of the test, would likely constitute a medical or physical examination. Written tests which purport to test the honesty of the applicant and which do not measure physiological changes in the applicant are permitted under Minnesota law,31 although courts in some other jurisdictions are showing disfavor toward “integrity” tests. Employers are generally prohibited from using lie detector (polygraph) tests on applicants or employees.32
CREDITS: This post is an excerpt from An Employer’s Guide to Employment Law Issues in Minnesota, originally produced through a collaborative effort between the Minnesota Department of Employment and Economic Development and Lindquist & Vennum, P.L.L.P.
This post is part of a series of posts on hiring an employee in Minnesota.
29. Minn. Stat. § 363A.20, subd. 8(a)(3) (2007).
30. 42 U.S.C. § 2000e (2007); 29 C.F.R. §§ 1607.1 et. seq. (2007).
31. State by Spannaus v. Century Camera, Inc., 309 N.W.2d 735 (Minn. 1981).
32. 29 U.S.C. § 2002; Minn. Stat. § 181.75 (2007).