ABA Family Legal Guide

Law and the Workplace

The Hiring Process

May an employer use other types of tests (such as a skills test or an intelligence test) to screen applicants?

Yes, but they should be job related. A test may have an illegal discriminatory result on a protected class, even if it seems fair. This may cause an employer to deny jobs to an unusually high number of minorities. For example, a test of English-language skills might disqualify an unusual number of persons for whom English is a second language. Unless the job requires English proficiency, the test may be illegal.

Extensive federal regulations govern the use of employment tests. A test has a discriminatory impact if the pass rate for a protected class is less than 80 percent of the pass rate for white men. If 50 percent of the white males pass the test, then 40 percent or more of black males must pass. If the pass rate is less than 80 percent of the pass rate for white males, the test is considered discriminatory under Title VII unless the employer can prove that the test is directly related in a significant way to successful job performance. If the test is job related, then the employer is allowed to use it.