Master forum 602
Negligence — Part 2
LESSON TOPICS
· Physical Ability and/or Fitness Testing
· Physical Testing
· Integrity Testing
· Personality Testing
· Special Skills Testing
· Drugs and Other Substances Testing
· Legal Substances
INTRODUCTION
In Lesson Four of this course, we discussed the ways in which employers are and are not permitted to screen potential job applicants based on historical information, including crime and credit. In addition to historical tools, there are also screening tools for current circumstances which may legally be used for identifying the best job candidates. These include screenings for physical fitness, integrity, personality, specific skills, and substance use.
HR Professionals should use these screening tests only when necessary for recruitment, and, as we’ll discuss, even then such tests should be carefully scrutinized to ensure they do not have the purpose or effect of discrimination against any protected class.
Physical Ability and/or Fitness Testing
Generally, physical tests are permissible for the purposes of screening job applicants. However, as with every other tool discussed, such tests should be narrowly tailored to the requirements of the job for which an applicant is applying (Weisenfeld, n.d.). Physical ability tests and physical fitness tests are often discussed collectively and interchangeably in conversation, but these are in fact two different types of tests.
· PHYSICAL ABILITY TESTS
Physical ability tests evaluate a candidate’s ability to perform a specific physical task. For example, if a job requires a candidate to lift 40-pound boxes, then a physical ability test should measure an applicant’s ability to lift such a box. The test should not require an applicant to lift anything heavier than that which would be required on the job; again, the key is narrow tailoring to the job.
· PHYSICAL FITNESS TESTS
Physical fitness tests, on the other hand, are tests that evaluate general health and wellness. Generally speaking, general health and wellness is relative, subjective, and difficult to establish as a prerequisite for a given job. Again, if the job requires specific physical tasks, then the evaluation should test applicants on those tasks and nothing else. For example, if the candidate in question can lift the 40-pound box discussed above, then metrics such as the candidate’s heart rate, blood pressure, and cholesterol while lifting the box are generally not relevant and using them as grounds for exclusion risks liability for discrimination.
Physical Testing
A key question in the scope of determining propriety for physical tests is whether or not the test is legally considered to be a “medical examination”. Under the Americans with Disabilities Act (ADA), a medical examination is “a procedure or test that seeks information about an individual's physical or mental impairments or health.” (Equal Employment Opportunity Commission, 1995). According to the EEOC’s enforcement guidance on the subject, medical examinations may only be required after an employment offer has been made . This serves to deter discrimination on the basis of ability prior to hiring and to maintain the confidentiality of any disabilities which may be protected under the ADA (see Lesson Two for more information). However, an employer may require physical tests prior to a job offer, provided such tests do not rise to the level of a medical examination.
Suppose that an employer wants to administer a strength test to evaluate the fitness of candidates for a job. Provided that the job in question requires the strength being tested, then this test is probably justifiable.
It is worth noting that the same standards of test propriety also apply to government mandates as well. For example, law enforcement recruiting very commonly requires physical ability and fitness testing, but these agencies are still required to justify their hiring standards in light of the demands of the jobs for which they are utilized (Berry, 2014). In another example, state and federal departments of transportation often require periodic medical examinations for all drivers of commercial vehicles. These types of tests have generally been upheld due to the job requirements and high-risk involved with transportation work (Federal Motor Carrier Safety Administration, n.d.).
HR professionals should ensure that any physical testing done is directly related to the specific job requirements and that such testing does not violate the law. Where it is apparent that the physical demands of a job might result in discrimination against protected classes such as gender, age, or disability, employers should carefully consider reasonable accommodations that would resolve concerns over ability before such applicants are excluded.
Integrity Testing
Another group of tests that may be used by employers for screening applicants is integrity, personality and cognitive skill assessments (Equal Employment Opportunity Commission, n.d.). In reality, anytime an employer asks an assessment question in an interview setting eliciting a verbal response, he or she is conducting one of these three types of tests. In the context of this lesson, we are generally referring to standardized, formal testing that is usually in written form with controlled parameters.
TYPES OF INTEGRITY TEST
· OVERT
The kind that asks directly about employee views and predispositions toward different thoughts and behaviors
· COVERT
Those that attempt to extrapolate from personality dimensions the probabilities of employee behavior (Alliger, Lilienfeld, & Mitchell, 1996)
Integrity tests are typically used to assess the quality of an applicant’s character for the purposes of determining whether his or her work ethic, productivity, reliability, and moral compass will align with the expectations of the employer in question.
There are a great number of critics of these types of tests. Some argue that the tests are not accurate enough to be a valid foundation for making employment decisions. Others argue that it is unfair to exclude someone from consideration for the possibilities of that which might or might not ever actually occur. For example, one might indicate on a written test that he or she has contemplated stealing things in past situations; but thinking about crime would not be grounds for prosecuting that individual, so why should it be grounds for denying them employment? Nonetheless, some of the more widely-used integrity tests have shown a respectable degree of reliability, and thus generally are legal provided that they are not discriminatory in intent or effect.
Personality Testing
Personality tests are yet another type of assessment for gauging applicant fit with the requirements of a job. The scope of personality assessment is even more broad and abstract than with integrity tests. Some personality tests can actually be used as a type of covert integrity test. Others are designed to measure one’s extraversion-introversion inclinations or intuition for the purposes of culture fit. Still, others are engineered to assess one’s leadership qualities and whether or not an applicant will be successful managing others.
One of the most popular personality assessments is the Meyers-Briggs Type Indicator; it purports to measure all of the above characteristics and more, in one fashion or another and has been widely adopted by 89 of the Fortune 100 companies for hiring. Personality tests are not without their own critics either, however. Some experts argue that human personalities are too abstract to be reducible to a prediction by such metrics, and thus should not be used. (Psychometric Success, n.d.)
LEARN MORE ABOUT THE MEYERS BRIGGS FOUNDATIONhttp://www.myersbriggs.org/my-mbti-personality-type/mbti-basics/home.htm?bhcp=1
Special Skills Testing
Beyond integrity and personality, there are at times special skills that may be required for certain jobs, and the testing of those skills, where they are genuinely needed, is usually legally permissible. One classic example of such a test is typing speed. Clerical positions often require speed and accuracy in typing so that the employees in question meet productivity expectations. Thus, typing tests are generally fair game for employers in such positions. Other cognitive skill tests, such as mathematics, strategy, logic, reasoning, etc. are also usually legal, again, provided that the requirements of the jobs for which they are used justify them (Nolo, n.d.).
Drugs and Other Substances Testing
A final common screening tool used by employers is that of drug and other substance testing. Although this type of test is often conducted after a job offer is made, with employment conditional upon passing, it is important to note that such tests can be — and sometimes are — conducted periodically even during employment itself.
· ILLEGAL SUBSTANCES
The most common type of drug testing is that which tests for illicit controlled substances; that is to say, drugs which are illegal for use in any context. If an applicant or existing employee tests positive for a substance that is illegal, this is almost always a sufficient reason for the employer to deny or terminate employment, as the case may be (Workplace Fairness, n.d.). The reasoning here is several-fold: 1) failing such a test is prima facie evidence that the applicant or employee has broken the law, and 2) such substances usually impair either the mind or body or both, and this is a substantial liability concern for employers (see vicarious liability in Lesson Six). The issue becomes a bit more complicated on the subject of controlled substances which are not illicit.
· CONTROLLED SUBSTANCES
Legal Substances
There is one final issue on the subject of substance screening: what about legal substances? Are employers permitted to discriminate in employment based on the consumption of legal substances such as tobacco? At least so far, the short answer is yes (Cueni-Cohen, 2012). Recently, more employers have successfully argued that the consumption of such substances has been conclusively linked to adverse health (e.g. smoking generally leads to cancer, emphysema, etc.), and these adverse health effects have substantially raised employer health insurance premiums. Thus, since tobacco consumption is not, in and of itself, a protected class, more employers are implementing tobacco-free workplace initiatives. This is quite different from the aforementioned illegal and controlled substances policies, as tobacco has not been shown to impair mental or physical functions.
Since such attributes are not explicitly protected by law, employers are free to discriminate based on them, but as with any exclusionary policy, employers need to be very careful to ensure these initiatives do not have the effect of discrimination against classes which are protected (see disparate treatment in Lesson One).
Some opponents of such policies argue that tobacco addiction should be classified as a disability under the ADA, such that tobacco-free workplace policies would amount to illegal discrimination. Others argue that employers dictating off-work personal activities violate employees’ rights to privacy. Currently, there is little legal precedent with which to predict the continued legal status of these policies, but time will tell whether they last.
Employers are usually not required under federal law to conduct any type of drug testing for employment unless they are either a federal contractor or grantee subject to the Drug-Free Workplace Act of 1988 (United States Department of Labor, n.d.). However, individual state laws may contain additional requirements. Some states, for example, require reasonable suspicion before a drug-test may be conducted, whereas others allow for random periodic testing (Workplace Fairness, n.d.).
Conclusion
As we have thoroughly reviewed, it is critical that whenever an HR professional is considering the implementation of a new employment screening device, he or she is absolutely certain of two things:
· The proposed screening tool is narrowly-tailored to the needs of the job in question
· The proposed tool does not have the intent or effect of discriminating against a protected class of applicants.
In this lesson, we discussed the most common tools used by employers for screening applicants based on current circumstances, including tests of physical ability and fitness, integrity, personality, cognitive skills, and even substance use. In next week’s lesson, we will discuss the ways in which employers may find liability for employee actions notwithstanding the thoroughness and efficacy of employment screening.
References
Alliger, G. M., Lilienfeld, S. O., & Mitchell, K. E.. (1996). The susceptibility of overt and covert integrity tests to coaching and faking. Psychological Science, 7(1), 32–39.
Berry, J. V. (2014, May 10). Physical fitness test appeals for police officers. Retrieved from http://www.policelawblog.com/blog/2014/05/physical-fitness-test-appeals-for-police-officers.html
Cueni-Cohen, J. (2012, October 9). The trouble with tobacco testing. Human Resource Executive Online. Retrieved from http://www.hreonline.com/HRE/view/story.jhtml?id=534354450
Equal Employment Opportunity Commission (n.d.) Employment tests and selection procedures. Retrieved from http://www.eeoc.gov/policy/docs/factemployment_procedures.html
Equal Employment Opportunity Commission (1995, October 10). EEOC Notice 915.002. Enforcement guidance: Preemployament disability-related questions and medical examinations. Retrieved from http://www.eeoc.gov/policy/docs/preemp.html
Equal Employment Opportunity Commission (2005, September 29). Press Release: Dial ordered to pay more than $3 million in EEOC sex discrimination case. Retrieved from http://www.eeoc.gov/eeoc/newsroom/release/9-29-05.cfm
Federal Motor Carrier Safety Administration (n.d.) DOT Medical Exam and Commercial Motor Vehicle Certification. Retrieved from https://www.fmcsa.dot.gov/medical/driver-medical-requirements/dot-medical-exam-and-commercial-motor-vehicle-certification
Nolo (n.d.) Testing job applicants. Retrieved from http://www.nolo.com/legal-encyclopedia/testing-job-applicants-29915.html
Psychometric Success (n.d.). Even popular personality tests are controversial. Retrieved from http://www.psychometric-success.com/personality-tests/personality-tests-popular-tests.htm
United States Department of Labor (n.d.). Drug-Free Workplace of 1988 requirements. Retrieved from http://webapps.dol.gov/elaws/asp/drugfree/screenr.htm
Weisenfeld, D. B. (n.d.) HR support on employee physical fitness testing. Retrieved from http://www.xperthr.com/topics/recruiting-and-hiring/pre-employment-screening/physical-fitness-testing/
Workplace Fairness (n.d.). Drug testing. Retrieved from https://www.workplacefairness.org/drug-testing-workplace