Part 2: Risks and Benefits to When You Do Your Testing

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Hi Theresa. A few months ago we did a pretty good blog series on psychological assessment. However, I have had a lot of pushback from folk on this.

Hi Brent,

Yes, I have run into this question with my clients as well, and I can understand the practical problems. The best way to do this and comply with the law is to offer the position and then do the testing.

But if the mission really doesn't want to do it this way, we can consider other things.

• First, is the position ministerial? If the ministerial exception applies, it may not matter much, because religious organizations have pretty close to absolute discretion on choosing their ministers.

• Second, let's consider the point of the law. The reason for the law is to keep organizations from pre-screening out people based on a background check or on disabilities.

The EEOC's guidance is that it is not okay to do the assessment before the job offer, even if there is segregation of information. https://www.eeoc.gov/. Sometimes a mission will have the testing done, but have it completely separated from the decision of the candidate committee, with a “firewall” keeping the people doing the testing and the people on the candidate committee from sharing information. Once the candidate committee has made (and written down) its decision, the information from the testing can be brought in and compared with the job descriptions. (You and I have talked extensively about how the job descriptions should be clear on the necessary job functions.)

Will that work? We won't know unless it's challenged. The EEOC guidance does not have the full force of the statute, but it's something you ignore at your peril. If the mission is going to test before the job offer, it's better to have the firewall than not to have the firewall.

Then the candidate can be disqualified (because of something that doesn't fit the spiritual criteria or some problem that is impossible to accommodate), approved, or enter a discussion about potential accommodations or a safety plan.

If a mission tried this approach, should discuss what it wants to do with legal counsel to work through all the possible steps, and script what is being communicated. The process could also state clearly the spiritual and practical reasons why this approach is adopted. (In this process, not only federal but state law applies, so I'm not recommending a DIY here.)

I hope this helps with your question.

P.S. The psychological or medical testing must also be careful to avoid questions that implicate GINA.

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Disclaimer: not official legal or psychological advice or opinion