EEOC Review of Integrity Testing

Integrity tests have been used by employers for well over two decades to help identify productive employees that will not engage in various forms of workplace counterproductivity (e.g., theft, turnover, illegal drug use, safety infractions).

Legal Challenges – or Lack Thereof
Since their initial development, integrity tests have been the focus of very few legal challenges. This largely stems from the fact that these tests have consistently been shown not to exhibit disparate impact on the basis of an applicant’s protected subgroup status. This is confirmed by extensive research published by leaders in the field of industrial psychology (See Comprehensive meta-analysis of integrity test validities: Findings and implications for personnel selection and theories of job performance. Journal of Applied Psychology, 78, 679-703 (1993)), as well as consistently favorable dispositions by the Equal Employment Opportunity Commission (“EEOC”) and state administrative agencies charged with enforcing fair employment laws.

Specifically, over the course of the last 25 years, there have been less than 30 discrimination challenges filed based on  the use of integrity tests, and all such complaints have been favorably disposed of on the basis of no probable cause determinations. Parenthetically, given that the EEOC fielded over 90,000 complaints last year alone, integrity tests obviously have not been a lightning rod for litigation.

Integrity Testing and the Civil Rights Act
In light of the above, there is a general and significant comfort level with respect to integrity testing’s compliance with Title VII of the Civil Rights Act of 1964 (“Title VII”) and its protections based on national origin, race, color, religion and gender. However, recently the EEOC received an inquiry regarding the use of an integrity test—specifically regarding its questions about what an applicant would do in hypothetical situations that involve illegal activity and items regarding the prospective employee’s current use of illegal drugs, including marijuana.

The inquiry was seeking clarification regarding whether the EEOC’s 2013 guidance entitled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (“Enforcement Guidance”) applies to integrity tests because of questions involving hypothetical illegal activities, and if questions about current illegal drug use would be considered unlawful pre-employment medical inquiries under the Americans with Disabilities Act (“ADA”).

EEOC Response

According to the EEOC, the inquiry it received specifically requested insight regarding questions that “…ask applicants to describe their current use of methamphetamine, their current use of illegal, non-prescription drugs at work, and whether they 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.”

In its September 9, 2013 response, the EEOC indicated that since applicants are not asked to provide any information regarding their arrest or conviction record, integrity tests do “…not directly implicate Title VII liability concerning the use of such criminal history information in employment decisions as discussed in its Enforcement Guidance. Additionally, Title VII does not prohibit employers from asking applicants about their current use of illegal drugs, illegal use of nonprescription drugs at work, or hypothetical questions about what they would do in situations that may involve criminal/illegal activity.”

With respect to the ADA, the EEOC acknowledged that the law limits employers from making pre-employment disability-related inquiries. However, the agency further indicated that “…the ADA does not protect individuals who are currently engaging in the illegal use of drugs…”, hence a tests’ inquiries regarding an applicant’s “current” illegal drug use is not a disability-related inquiry.

Bottom line, inquiries regarding “current” illegal drug use do not raise issues under the ADA. The agency was quick to point out though, that “… questions about past addiction to illegal drugs or questions about whether an applicant has ever participated in a rehabilitation program are disability-related inquiries...”

In conclusion, it is reassuring to see the EEOC’s recent and favorable discussion of items that are common to integrity tests. Also, the agency’s review and thoughts strongly reinforce the fact that employers must ensure that they are working with a test publisher that is extremely familiar with all legal issues raised by pre-employment testing.

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