White Paper
Employee Screening Procedures
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This white paper outlines the requirements of the major federal laws addressing what an employer can and cannot do during a candidate screening process.
It then explores how other issues of liability may arise from improperly implementing an employee hiring process.
Finally, the paper addresses how exemptions and exceptions uniquely available to religious employers may change the screening process and provides practical principles to minimize the risk of liability while finding the ideal candidate.
I. Federal and State Laws Addressing Employee Screening
Several federal laws regulate how employee screening may be conducted. Principally, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and Title VII of the Civil Rights Act of 1964 all help control how employers can screen potential employees.
A. Americans with Disabilities Act
The Americans with Disabilities Act (ADA) prohibits discrimination in employment against people with disabilities.
Religious organizations generally are not exempt from the employment provisions of the ADA and must consider qualified individuals with disabilities on an equal basis with others who satisfy religious criteria.
Under the ADA, screening restrictions are analyzed in three stages:
- Pre-offer stage
- Post-offer stage
- Employment stage
1. Pre-Offer Stage
During the pre-offer stage, employers may not conduct medical examinations or ask disability-related questions.
The term “medical examination” is broader than a physical examination and includes many psychological tests designed to identify mental disorders or impairments, including the MMPI and similar assessments.
Missions that require applicants to take these types of tests before extending a job offer risk violating the ADA.
However, not every readiness assessment qualifies as a prohibited medical examination. Personality assessments measuring traits such as honesty, habits, or preferences are generally permissible so long as they do not seek disability-related information.
Examples of prohibited questions include:
- Whether the candidate has a disability
- The severity or nature of a disability
- Whether the candidate has taken antidepressants
- Whether the candidate has a history of depression
Employers may still evaluate non-medical qualifications such as:
- Background checks
- Reference checks
- Education
- Spiritual qualifications
- Religious commitment and beliefs
2. Post-Offer Stage
Once a conditional offer of employment has been made, the ADA permits employers to conduct medical examinations and disability-related inquiries.
The offer must be genuine and based on all reasonably obtainable non-medical information before the examination occurs.
Psychological screenings performed after a conditional offer must follow several important rules:
- The same testing must be administered to all entering employees in the same job category
- Results must be treated as confidential medical records
- Results cannot be used inconsistently with ADA protections
If a job offer is withdrawn because of medical or psychological findings, the employer must demonstrate that the decision is job-related and consistent with business necessity.
Organizations conducting these screenings should have clearly written job descriptions showing why certain traits or requirements are essential for the role.
3. Assessments During Employment
After employment begins, additional psychological evaluations may be permitted if they are job-related and consistent with business necessity.
Employers may require evaluations where:
- Objective evidence suggests the employee can no longer perform essential job functions
- The employee may pose a direct threat due to a medical condition
Periodic examinations may also be permissible for positions affecting public safety, such as police officers or airline pilots.
The paper notes that missionaries are unlikely to fall into the same category as public safety personnel because their roles do not generally implicate public safety in the same way.
4. Safeguarding the Information
Any medical or psychological information obtained through screening must remain confidential.
Such information:
- Must be stored separately from normal personnel files
- May only be shared with authorized individuals
- May be disclosed to supervisors only when necessary for accommodations or restrictions
- May be disclosed to first aid or safety personnel when emergency treatment may be required
B. Genetic Information Nondiscrimination Act (GINA)
GINA prohibits employers from collecting or using genetic information in employment decisions.
Genetic information includes:
- Genetic test results
- Family medical history
- Medical conditions of family members
Even where medical examinations are otherwise allowed under the ADA, employers may not ask about family medical history.
For example, asking whether family members suffered from bipolar disorder to predict future mental health conditions would violate GINA.
Although litigation under GINA is relatively uncommon, organizations should still avoid requesting genetic information.
C. Title VII of the Civil Rights Act
Title VII prohibits discrimination on the basis of race, color, national origin, religion, and sex.
Screening procedures that disproportionately affect protected groups may expose organizations to liability.
The paper also discusses evolving legal interpretations regarding:
- Sexual orientation
- Gender identity
- Criminal background checks
Blanket exclusion policies based on criminal history may create discrimination concerns under Title VII if they disproportionately affect certain racial groups.
More targeted screening practices focused on child protection, domestic violence, theft, or embezzlement are less likely to create legal problems.
D. Other Important Laws
1. Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) regulates the use of third-party background checks and credit reports during hiring.
Employers generally must:
- Obtain applicant permission
- Provide notice regarding the use of reports
- Use reputable third-party providers
2. State and Local Laws
States and local jurisdictions may impose additional hiring restrictions.
The paper specifically discusses “ban the box” or “fair chance hiring” laws, which limit when employers may ask about criminal history.
These laws vary widely depending on jurisdiction and may apply differently based on employer size.
E. Other Liability Issues Connected with Pre-Employment Screening
1. Practicing Psychology without a License
Organizations conducting psychological testing without licensed professionals may risk claims related to practicing psychology without a license.
Although such claims are relatively uncommon, employers may still incur significant legal expenses defending against them.
2. State-Specific Claims
Applicants may also attempt to bring privacy-based tort claims under state law if screening procedures are considered overly invasive.
The paper discusses cases involving the MMPI where courts found that questions about religion and sexual orientation potentially violated privacy protections because they were not sufficiently job-related.
3. Negligent Supervision and Negligent Retention
Thorough screening may help avoid negligent hiring claims, but extensive psychological testing may also create additional obligations for organizations.
Courts have sometimes held organizations liable under negligent supervision or negligent retention theories where prior psychological reports revealed warning signs that were ignored.
At the same time, failing to perform reasonable background and reference checks may also create liability.
II. Religious Exemptions and the Ministerial Exception
A. Religious Exemptions
Title VII provides religious organizations with exemptions allowing them to make employment decisions based on religion.
Religious organizations may:
- Consider religious beliefs during hiring
- Evaluate adherence to moral teachings
- Assess conformity with religious doctrine
Screening applicants based on spiritual maturity and faith alignment is strongly encouraged before conducting more invasive psychological testing.
B. The Ministerial Exception
The ministerial exception is a constitutional doctrine recognizing the right of religious organizations to select and supervise ministers without government interference.
The exception can provide a defense against employment discrimination lawsuits involving ministerial employees.
Courts consider multiple factors when determining whether a position is ministerial, including:
- Ministerial titles
- Religious training
- Formal ordination or commissioning
- Religious job duties
- Whether the employee presents themselves as a minister
The paper strongly recommends detailed ministerial job descriptions and signed acknowledgements from employees.
C. Other Religious Protections
Religious organizations may also rely on protections under:
- The First Amendment
- The federal Religious Freedom Restoration Act (RFRA)
- State-level RFRA laws
RFRA protections may apply where compliance with employment laws substantially burdens sincerely held religious beliefs.
These protections are highly fact-specific and require careful legal analysis.
III. Conclusion and Best Practices
A solid employee screening protocol is essential for every ministry.
Effective screening helps:
- Identify qualified candidates
- Protect ministry participants
- Reduce liability exposure
- Prevent harmful hires
The paper recommends the following best practices:
Use Spiritual Criteria First
Ministries should evaluate spiritual maturity and religious alignment before conducting ADA-regulated screening.
Screening candidates out on clearly religious grounds is more defensible than relying on psychological testing.
Conduct Psychological Screening in Compliance with Federal Law
Psychological testing should occur only after:
- A conditional offer has been made
- All other application components have been reviewed
- The screening is conducted by qualified professionals
Improper screening procedures may result in costly litigation and attorney fee exposure.
Create Clear Ministerial Job Descriptions
Organizations should clearly define ministerial roles and explain that certain employment discrimination protections may not apply.
Strong documentation regarding religious training, commissioning, and ministry duties will strengthen the organization’s ability to invoke the ministerial exception if litigation arises.