Home Business Navigating Complex Issues of Employment Negligence (Part IV)
Navigating Complex Issues of Employment Negligence (Part IV)

Navigating Complex Issues of Employment Negligence (Part IV)

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By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson materials written for APUS classes. This is the fourth article in a seven-part series on the particulars of employment negligence law and smart employer strategies for avoiding unnecessary workplace liability.

In the first part of this series, we reviewed the basic definition and components of employment negligence. In the second part, we looked at ways in which employers are and are not permitted to screen job applicants based on historical information, including crime and credit checks. In the third part, we examined physical fitness and ability tests as screening tools. Now, we will explore whether tests for integrity, personality and specific skills are permissible in employment screening.

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In Addition to Physical Tests, Employers May Use Other Employment Tests to Screen Job Applicants

In addition to physical tests, other tests that employers may use for screening job applicants are assessments of integrity, personality and cognitive skills. In reality, any time an employer asks an assessment question in an interview to elicit a verbal response, he or she is conducting one of these three types of tests. However, for our purposes, we are generally referring to the types of standardized, formal testing that is usually in written form with controlled parameters.

Integrity Tests

Integrity tests are typically used to assess the quality of an applicant’s character. The purpose is to determine whether his or her work ethic, productivity, reliability and moral compass will align with the expectations of the prospective employer. There are several different types of integrity tests, including overt (the kind that ask job candidates directly about their views and predispositions toward different thoughts and behaviors) and covert (those that attempt to extrapolate from personality dimensions the probabilities of employee behavior without the applicant’s awareness).

There are many 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 a possible characteristic that might not be relevant.

For example, one might indicate on a written test that he or she has contemplated stealing things in some situations. But just thinking about a criminal act would not be grounds for arrest and prosecution, so why should it be grounds for denying him or her employment? Integrity tests are generally legal, provided they are not discriminatory in intent or effect. But different tests have shown varying degrees of reliability, so employers should choose their screening tools carefully.

Personality Tests

Personality tests are another type of assessment for gauging applicant fitness for the requirements of a job. The scope of a personality assessment is even broader and more abstract than with integrity tests. Some personality tests can actually be used as a type of covert integrity test.

Others are designed to measure an applicant’s extraversion-introversion inclinations or intuition for the purposes of culture fit. Still others are engineered to assess leadership qualities and whether or not an applicant will be successful managing others.

One of the most popular personality assessments is the Myers-Briggs Type Indicator (MTBI). The MBTI purports to measure all of the above characteristics and more in one fashion or another. It has been widely adopted by 89 of the Fortune 100 companies for hiring.

Personality tests are not without their own critics, however. Some experts argue that human personalities are too abstract to be reducible for predictions based on metrics, and therefore should not be used.

Specific Skills Tests for Employment

Beyond integrity and personality, there are times when special skills may be required for certain jobs. When they are genuinely needed, testing those skills is usually legally permissible.

Typing is one classic example of such a test. Clerical positions often require fast and accurate typing to meet productivity expectations. Thus, typing tests are generally fair game for employers to test for such positions. Other cognitive skill tests, such as mathematics, strategy, logic, and reasoning, are also usually legal, provided that the requirements of the jobs for which they are used justify them.

As with physical testing, in the case of integrity, personality and cognitive skill tests, employers should use these tools only when necessary for recruitment. Even then, such tests should be carefully scrutinized to ensure that they do not have the purpose or effect of discriminating against any protected class.

In the next part of this article series, we’ll look at drug and substance testing as a screening tool for employers.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

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