Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Psychometric testing: A valid means of pre-employment screening? Testing can provide useful information, but there are risks aplenty BY ASHLEY BROWN WE LIVE IN an era in which legal obliga- tions can make it difficult — and costly — to say goodbye to a bad hire. Selecting the right candidate for a job is therefore criti- cal. Unfortunately, a resume, interview and professional reference check can only offer so much insight. ey don't necessarily indi- cate a candidate's intelligence, maturity, and whether and how well he is likely to handle stress, conflict and change. To address this information gap, some em- ployers have turned to psychometric testing as part of their pre-employment screening processes. While the use of psychometrics may provide useful data, an employer con- sidering venturing down this path should be aware of the risks. Five criteria for a sound psychological testing protocol As a general rule, use of psychological test- ing is permissible so long as it does not run afoul of human rights legislation. As well, in a unionized environment, such testing must satisfy the following additional criteria: • It does not infringe a governing collective agreement or internal policy • It is rationally connected to the job/posi- tion at issue • It is valid and reliable • It is administered fairly and reasonably. Seems pretty simple? In fact, satisfying these criteria can be easier said than done. Human rights and privacy Among the primary objections to psycho- logical testing raised by employees and trade unions are that the tests are: an unreasonable or unfair exercise of management rights; dis- criminatory (or applied in a discriminatory manner) and therefore a violation of a can- didate's human rights; and an invasion of a candidate's personal privacy. Consider the following: While questions related to a candidate's mental health should not be posed directly by a prospective employer, the results of a candidate's psychological test may indirectly reveal or suggest a candidate suffers from a psychological disability. is is information to which an employer is not ordinarily enti- tled and which, absent the test results, would not have been discovered unless voluntarily disclosed by the candidate. However, once known by a prospective employer, regard- less of how the information was garnered, the prospective employer has a duty not to discriminate, and potentially to accommo- date the candidate under human rights legis- lation, adding another layer of complexity to an already complicated and time-consum- ing recruitment process. Similarly, a test may have other unintend- ed consequences by screening out members of a particular group of candidates, contrary to human rights legislation. Even with the best of intentions, ensuring a test is administered in a "fair" and "reason- able" manner can be problematic. is point is illustrated by the case of Alberta Teachers' Association v. Calgary Board of Education — a 2010 decision which considered the Cal- gary Board of Education's implementation of psychological testing to assess the lead- ership potential of principals and assistant principals. e Board of Education administered a series of psychological tests to incumbent principals and assistant principals who ex- hibited desirable leadership qualities. e results were to be used as a benchmark against which future leadership candidates would be measured. e union filed a griev- ance alleging the tests were invalid, unreli- able, unrelated to the positions in question and, further, that the manner in which they were administered infringed the employees' personal privacy. e arbitration panel allowed the griev- ance, in part. While the implementation of psychological testing was not itself in con- travention of the collective agreement, the manner in which the tests had been adminis- tered was "maladroit and unreasonable". e panel found the Board of Education failed to provide incumbents with sufficient advance warning of the test, or to advise incumbents of the rationale for the test and the purpose for which the results would be used. Best practices for employers e risks associated with psychological test- ing may lead some employers to conclude this type of testing is not right for their work- place. However, if — after weighing the pros and cons — you conclude psychological test- ing may benefit your workplace, consider the following best practices: • Ensure the test is compliant with applicable human rights legislation • Ensure the test is compliant with any col- lective agreement and/or internal policy • Ensure the test is designed to assess a skill or ability that is a core requirement of the job • Do not make hiring decisions based solely on psychological test results. Psychological indicators may appropriately be considered as a part of the overall decision-making pro- cess. However, adjudicators have consistent- ly held it is unfair and unreasonable to rely on such indicators alone. • Select a testing protocol well-recognized and regarded by qualified professionals • Administer the test consistently and not just to 'some' applicants • Ensure test results are not shared more broadly than to make an informed hiring de- cision. If a third party is retained to interpret or assess test results, ensure that third party has sufficient privacy and confidentiality safeguards in place. • Obtain informed consent from any can- didate who will be subject to psychological testing. is includes providing an expla- nation of the tests to be administered, their purpose, how results will be used, and to whom results will be distributed. ABOUT THE AUTHOR ASHLEY BROWN Ashley Brown is a lawyer with Sherrard Kuzz LLP, a management-side labour and employment firm in Toronto. Ashley can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www.sherrardkuzz.com.

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