I. Testing

A great percentage of large employers now routinely test job applicants before hiring. Pre-employment drug and alcohol tests have generally been upheld as legal when all applicants must submit to such tests and are warned in advance that the failure to take the test will cause them not to be considered for the position. For certain types of jobs involving airline pilots, railroad employees, and motor carriers who operate commercial motor vehicles in interstate commerce, drug testing is required by the U.S. Department of Transportation.

Tip:Pre-employment drug and alcohol testing is prohibited in some states as violating a person's right to privacy, so check your local state's law where applicable. Also, the ability to test does not give potential employers the right to handle test results carelessly. Some states impose strict guidelines as to the manner in which job applicants can be tested (for example, by giving reasonable notice before the test is administered and stating how specimens will be handled and safeguarded). Unwarranted disclosure of test results can result in huge damages by successfully asserting legal claims of wrongful discharge, slander, defamation, and invasion of privacy, especially if you are denied a job on the basis of an alleged failure and it is later determined there was a mistake with the test results. Consult a competent lawyer when you believe you have been exploited or injured in this area.

The federal Polygraph Protection Act of 1988 prohibits applicants from submitting to lie detector tests before hiring. Additionally, most states have enacted laws protecting job applicants from stress tests, psychological evaluator tests, and other honesty tests. In one reported case, a large retailer required thousands of applicants to take a detailed psychological test as a prerequisite to being hired. The test contained questions designed to elicit information about an applicant's sexual orientation and preference. One question asked a candidate to state whether the person had indulged in "unusual" sex practices or preferred members of their same sex as partners. A class action lawsuit was filed, alleging violations of privacy and discrimination laws. The retailer admitted wrongdoing in an out-of-court settlement, and agreed to pay $1.3 million to more than 2,000 applicants who took the test, and destroy all test results.

Counsel Comments:Although legitimate psychological tests may exist, they may still be discriminatory. The EEOC has ruled that any test with a hidden bias or which unfairly penalizes women is illegal.