Employers are allowed to test job applicants, but every test has to be tied to the job itself and given the same way to everyone applying for that position. Federal law bans a few specific types of testing outright, and civil rights statutes limit the rest. If a test screens people out based on race, sex, age, disability, or another protected trait, the employer has to prove the test measures something the job genuinely requires.
The Standard Every Test Has to Meet
Two words control almost everything in this area: job-related and business necessity. A test has to measure a skill, ability, or trait the position actually requires, and the employer has to need that measurement to run the operation safely and effectively. These requirements come from Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, and they apply no matter what format the test takes.1U.S. Equal Employment Opportunity Commission. Employment Tests and Selection Procedures
If a test gets challenged, the employer carries the burden of showing it actually predicts performance in that job. “It helps us find better candidates” isn’t enough. The employer needs evidence, typically a formal validation study, connecting scores to job outcomes. Many companies buy an off-the-shelf assessment, never validate it for their specific roles, and end up facing an EEOC complaint when results skew against a particular group.
Tests Employers Can Generally Use
Skills and Work-Sample Tests
These directly measure whether you can do the work: typing tests, coding challenges, writing samples, language proficiency evaluations, and simulations of actual tasks. They’re the easiest to defend legally because the link between the test and the job is obvious on its face.1U.S. Equal Employment Opportunity Commission. Employment Tests and Selection Procedures
Cognitive Ability Tests
Assessments of reasoning, reading comprehension, arithmetic, memory, and processing speed are legal, but they carry the highest disparate-impact risk of any common test type. Employers using them should have solid validation data tying scores to performance in the specific role.1U.S. Equal Employment Opportunity Commission. Employment Tests and Selection Procedures
Personality and Integrity Tests
Personality assessments looking at traits like dependability, cooperativeness, or safety-mindedness are generally permissible, along with integrity tests aimed at predicting theft or absenteeism. These are not medical examinations, so employers can give them before a job offer.2U.S. Equal Employment Opportunity Commission. Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations
There’s a line, though. A personality test designed to detect clinical conditions like depression, anxiety, or compulsive disorders crosses into medical-examination territory. If a test could lead to diagnosing a mental health condition listed in the DSM, it cannot be given before a conditional job offer.2U.S. Equal Employment Opportunity Commission. Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations
Physical Ability Tests
Strength, endurance, and physical task tests are allowed when the job actually demands those capabilities. A warehouse that requires workers to lift 50-pound packages can test for that. But the employer cannot set the bar higher than the job requires. If the job calls for lifting 50 pounds, a test demanding 75 pounds fails the job-relatedness standard.3U.S. Equal Employment Opportunity Commission. Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures Physical tests also carry disparate-impact risk when they disproportionately exclude women, so the threshold has to match documented job demands.1U.S. Equal Employment Opportunity Commission. Employment Tests and Selection Procedures
Drug and Alcohol Testing
No single federal law requires most private employers to drug-test applicants. The decision is left mostly to the employer and state law. Civil rights rules still apply: a testing program cannot single out applicants based on race, sex, or other protected characteristics, and employers should avoid asking about legal prescription drugs, since that information could reveal a disability.4Substance Abuse and Mental Health Services Administration (SAMHSA). Federal Laws and Regulations
Safety-sensitive transportation jobs are different. Federal law requires pre-employment drug testing for commercial truck drivers, airline crew, railroad workers, transit operators, pipeline workers, and maritime personnel. An employer covered by Department of Transportation regulations must receive a negative drug test result before allowing anyone to perform safety-sensitive duties for the first time.5U.S. Department of Transportation Office of the Secretary. What Employers Need to Know About DOT Drug and Alcohol Testing
Marijuana is where federal and state law increasingly split. It remains a controlled substance federally, but a growing number of states restrict employers from penalizing applicants for off-duty marijuana use or for testing positive on a THC screen. Your state law may offer protections that federal law does not.
Background and Credit Checks
When an employer wants to pull a credit report or background check, the Fair Credit Reporting Act sets a specific sequence. Before requesting the report, the employer has to give you written notice in a standalone document, not buried in the application. You then have to give written permission.6Federal Trade Commission. Using Consumer Reports: What Employers Need to Know
If the employer decides not to hire you because of something in the report, they can’t just send a rejection. They first have to give you a copy of the report and a summary of your rights so you can spot errors. Only after that can they finalize the decision, and they then must send a second notice with the reporting company’s contact information and a statement that the company didn’t make the hiring decision. You have 60 days to dispute inaccuracies and request a free copy of your report.6Federal Trade Commission. Using Consumer Reports: What Employers Need to Know
Criminal history checks face extra limits. The federal Fair Chance to Compete for Jobs Act bars federal agencies and federal contractors from asking about criminal history before making a conditional offer, with narrow exceptions for classified or law enforcement positions.7U.S. Department of the Treasury. The Fair Chance to Compete Act More than 37 states and over 150 cities and counties have their own fair-chance laws that reach private employers.
Tests Employers Cannot Use
Lie Detector Tests
The Employee Polygraph Protection Act makes it illegal for most private employers to require, request, or even suggest that an applicant take a lie detector test.8Office of the Law Revision Counsel. 29 USC Ch. 22: Employee Polygraph Protection Narrow exceptions exist for security firms protecting critical infrastructure, currency, or proprietary information, and for employers authorized to handle controlled substances.9eCFR. 29 CFR Part 801 – Application of the Employee Polygraph Protection Act For the vast majority of jobs, if an employer asks you to take a polygraph, they’re breaking the law.
Genetic Testing
The Genetic Information Nondiscrimination Act flatly prohibits employers from requesting, requiring, or purchasing genetic information about applicants or employees. Genetic information covers DNA analysis, family medical history, and results of genetic tests taken by family members. The EEOC’s position is that this information says nothing about a person’s current ability to do the job, and it cannot factor into hiring at all.10U.S. Equal Employment Opportunity Commission. Genetic Information Nondiscrimination Act of 2008
Medical Exams Before a Conditional Offer
The ADA draws a firm line at the conditional job offer. Before that point, an employer cannot require a medical exam or ask disability-related questions. After extending a conditional offer, they can require a medical exam, but only if every person entering the same job category takes the same exam. If the offer is withdrawn based on the results, the employer has to show the reason was job-related and consistent with business necessity.11U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA
When a Neutral Test Still Breaks the Law
A test can look completely neutral and still violate federal law if it disproportionately screens out a protected group without a job-related justification. This is called disparate impact, and it doesn’t require proof that the employer intended to discriminate. If a cognitive test eliminates a disproportionate share of applicants from a particular racial group, the employer has to demonstrate the test validly predicts performance in that job.1U.S. Equal Employment Opportunity Commission. Employment Tests and Selection Procedures
Title VII also explicitly prohibits employers from adjusting scores, using different cutoffs, or altering results based on race, color, religion, sex, or national origin. An employer cannot “curve” scores for certain groups.12Office of the Law Revision Counsel. 42 USC 2000e-2 – Unlawful Employment Practices The ADEA sets a parallel rule for age: a test that disproportionately excludes applicants 40 and older is unlawful unless the employer can show the test reflects reasonable factors other than age.13Office of the Law Revision Counsel. 29 USC 623 – Prohibition of Age Discrimination
These rules also apply to algorithmic hiring tools: AI-scored video interviews, resume screeners, automated assessments. The EEOC has said explicitly that if an AI tool has an unjustifiable disparate impact based on a protected characteristic, the employer using it is liable, even when a third-party vendor built the software.14U.S. Equal Employment Opportunity Commission. What is the EEOC’s Role in AI Buying an algorithm doesn’t outsource legal responsibility.
Accommodations During Testing
If you have a disability, the ADA requires the employer to provide reasonable accommodations during pre-employment testing so the test measures your actual abilities rather than your disability. Accommodations can include large-print or Braille materials, screen-reading software, extended time, a distraction-free room, a scribe, wheelchair-accessible testing stations, or permission to take medication during the exam.15ADA.gov. ADA Requirements: Testing Accommodations
The employer can deny an accommodation only for undue hardship, which is a high bar. Cost and scheduling inconvenience rarely clear it. You do have to ask, though. Flag any needed accommodation early so the employer has time to arrange an alternative format.
If You Think a Test Was Used to Discriminate
If you believe a pre-employment test discriminated against you, file a charge of discrimination with the EEOC. You have 180 calendar days from the date of the alleged discrimination, extended to 300 days if a state or local agency enforces its own anti-discrimination law covering the same conduct.16U.S. Equal Employment Opportunity Commission. How to File a Charge of Employment Discrimination
You can start through the EEOC’s online Public Portal, at any of the agency’s 53 field offices, or by calling 1-800-669-4000. Filing a charge is a prerequisite to suing under Title VII, the ADA, or GINA. For age discrimination under the ADEA, the 300-day extension applies only if a state law and state agency specifically cover age discrimination. Missing these deadlines forfeits the claim, so don’t wait.