Here’s one we haven’t heard before: Employers subjecting applicants to “integrity testing” as part of the candidate screening process.
We recently stumbled on the practice via a post by Maria Greco Danaher on the Ogletree Deakins blog. The post references an “informal discussion letter” issued by the EEOC, in response to a query from a firm that “conducts integrity testing of employment applicants for third party employers.”
The inquiry focused on three questions included in the integrity test — one concerning the applicant’s use of methamphetamines; the applicant’s use of illegal drugs while at work; and “whether [candidates] would take things from their employer without permission to get even if they felt that the employer (either the company or their boss) was treating them unfairly.”
Danaher summed up the EEOC response:
Upon review, the EEOC opined that because the test questions “do not ask applicants to disclose their arrest or conviction history,” they do not implicate liability under Title VII of the Civil Rights Act of 1964 related to discriminatory use of criminal history information. Title VII does not prohibit employers from asking applicants about current illegal drug use or the illegal use of non-prescription drugs at work. Nor does it preclude an employer from asking an applicant hypothetical questions about how the applicant might react in situations that may involve illegal activity.
However, the EEOC was careful to point out that an employer still may violate Title VII if the evidence indicates that an integrity test was “designed, intended, or used” to discriminate against certain applicants because of protected characteristics. Further, such a test can violate Title VII if the results are adjusted or altered to screen out certain applicants in protected categories.
The EEOC then indicated that the subject integrity test also would not violate the Americans with Disabilities Act (ADA). While pre-employment tests may not ask disability-related questions or questions that are likely to elicit information about a disability, the ADA does not protect individuals who currently are using drugs illegally. Therefore, an inquiry on that issue does not violate the statute. However, questions related to past drug addiction, use, or treatment, would, in fact, be viewed by the EEOC as violating the ADA’s prohibition on disability-related questions.
Bottom line: Asking those types of questions, within limits, would be legal.
Uh, wait a second …
Danaher says the EEOC letter “is an important roadmap for employers that are inclined to use integrity testing in their application process.”
And we’d like to say this whole concept is idiotic.
Yes, of course, every employer’s looking for workers with integrity. But a test that asks applicants to quantify their meth use? How often they do illegal drugs at work? If they’d steal from the company if they felt they weren’t being treated fairly?
Can you imagine any drug user/thief answering these questions honestly? (Here’s an even trickier question: If a person is a drug user/thief, and admits to being so during the test, wouldn’t that be evidence of a certain kind of integrity?)
We’re all for testing and screening where appropriate and fair. But there are some intangibles — like character — you just can’t test for.
That’s the overarching reason companies have HR departments. HR pros gather as much information as possible — from former employers, co-workers, online sources and screening services — and then add in the “human” side of the equation through face-to-face encounters.
Sorry, there’s no test for integrity. That’s a call that must be made through a combination of hard data and human judgment.