Are Your Behavioral Assessment Practices Legal?

BY Kathy Crosett
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Digitization and big data continue to transform the business world. Employers have taken to automating their hiring practices in a big way, and some company execs now have to ask themselves if their behavioral assessment practices are legal. Recruiters and hiring organizations want to increase the chances of onboarding a candidate into a job that matches their interests and abilities. The use of artificial intelligence (AI), video interviews and other behavioral assessment systems has become so widespread that legislators have taken notice. In addition, college-​based recruiters have started to teach candidates how to advance through the brave new world of technology-​driven hiring.

Increased Use of Tech-​Based Assessments

Despite the full-​employment economy, businesses are receiving plenty of applications for their open positions. Job seekers use technology to efficiently send out dozens of applications for positions that sound interesting or promise a step up from what they’re currently doing. That strategy means businesses must find a way to efficiently process the overwhelming number of applications coming into their systems.

To determine which candidates will succeed in their sales department, for example, businesses are joining forces with third-​party technology companies. These days, writes Rachel Metz, entry-​level applicants must clear the first hurdle in the hiring process. Applicants are taking online assessments that measure their behavioral tendencies. And automated systems record, either through audio or video, an applicant’s answers to standardized questions.

The subsequent reports rank candidates, enabling hiring managers to quickly determine who will proceed to the next level. One industry operator mentioned in Metz’s CNN article claims to process over a million college students a year through its video assessment system for employers. Some clients opt to use the AI portion of that system. To maintain efficiency, it’s likely more businesses will quickly adopt AI in their hiring process.

Job applicants understand that they need to perform well during the automated video and audio interview sessions. Some colleges and universities have begun coaching students on how to conduct themselves during these interviews. Even with that coaching, a candidate may not understand how well they are doing in comparison to other people who are applying for the same job. And, there’s growing concern that these systems might contain built-​in biases that will discriminate against entire categories of job seekers.

Legislative Action and Behavioral Assessment Practices

Legislators in the state of Illinois didn’t like what they heard about AI being introduced into automated hiring processes. A new state law, which went into effect at the start of this year, requires employers to notify candidates of the following:

  • They use AI in their evaluation process
  • The list of “general types of characteristics” included in the AI algorithms
  • Asks for permission to create a video of the interview and promises to delete said video after 30 days, upon the candidate’s request

Regulator Action on Job Advertising Practices

Employers are also running into legal difficulties when they list their open positions on social media sites. The Equal Employment Opportunity Commission monitors how positions are being advertised. We all know that sites like Facebook allows marketers to target specific consumer groups. The EEOC knows this too. The regulators have taken action against large and small companies when they’ve discovered bias in hiring practices.

It may seem innocent enough to advertise your open position for a tire changer to a ‘male-​only’ audience. After all, that’s who works in those jobs at your company now, right? As far as the EEOC is concerned, when you limit your advertising campaign in this way, you deliberately show bias. Because you have excluded women who may be interested in and qualified to do this work.

Don’t let your unconscious biases end up costing you big bucks. Follow the advice of the experts: “Employers must keep in mind that job postings and announcements must be reviewed for content, and posted for publications, in ways and in media platforms that do not exclude categories of individuals, whether based on age, gender, race, or otherwise.” 

Is Your Screening Assessment Validated?

The behavioral assessments you use should also be validated. The EEOC has established specific criteria for assessment designers to consider when measuring and ranking candidates during the pre-​employment screening process. “Validity measures the degree to which the conclusions drawn from a test are accurate,” say SHRM experts.

The three areas defined by the EECO in determining validity are:

  • Content validity: The assessment should be asking about and measuring behaviors needed to perform the specific position the candidate is applying for.
  • Criterion-​related validity: The assessment should measure and rank a person’s ability to do the job. Can they lift 50 pounds without assistance, for example. Or a system may measure if the person can type a minimum number of words per minute. 
  • Construct validity: In these types of assessments, candidates are measured and ranked according to behavioral characteristics like honesty and dependability.

Validation is most important in terms of tracking what your organization has done over time. Consistently applying the results of behavioral assessments to job applicants establishes a baseline and a history.

Candidates and managers experience plenty of tension during the hiring process. Leaders should establish firm guidelines about how their process works. To encourage candidates to apply for open positions, they should reveal as much as they can about their decision-​making process. For best results, they should use a comprehensive behavioral assessment system.