Integrity tests: the new background checks?

Employers have the right to perform integrity testing, the EEOC has confirmed. But what exactly can HR ask, and what are the no-go areas?

Integrity tests: the new background checks?
controversy surrounding background checking has made you shy away from integrity testing, there's no need to be hesitant. A recent informal letter from the EEOC has served to clear up confusion about where the line is for employers wanting to ask questions about an applicant's integrity.

The letter was an open response to a question about what can be asked of applicants after one employer was confused about whether they could ask candidates if they use illegal drugs. The employer also wondered whether they could offer an ethical dilemma and ask what the applicant would do in the hypothetical situation. In its response, the EEOC assured employers that both types of questions were legal.

Ogletree Deakins employment law specialist Maria Greco Danaher said the letter was a reminder that employers have the right to conduct integrity tests.

"Employers don't always understand their rights as well as they understand their obligations. We're so caught up in the parameters that we have to stay within - and I'm not minimising that - but employers also have to understand what they are allowed to do," she said.

"Integrity testing is one of the things that employers have been hesitant to engage in, because it hasn't been addressed by the EEOC or by other government agencies as thoroughly as other things like background checks and ban the box.

"The line not to cross is if we take that permission and carry it one step further and create a question or a test that's intended to screen out particular applicants because of their gender or their race or some other protected characteristic."

As opposed to background checks, which obtain information from third parties such as courts and credit houses, integrity tests seek information directly from the applicant. And unlike background checks, integrity tests are far less fraught with legal pitfalls.

Staying aware of statements such as these from the EEOC can help HR professionals understand the rights of their companies, said Greco Danaher.

"I think that employers should be aware of letters like this and decisions like this that actually provide some kind of way through the maze of employment laws and provide some direction on the paths that we can take that will be viewed by the EEOC as acceptable, because those paths don't impinge on anyone's civil rights."

Integrity testing: dos and don'ts
  • You can ask about current illegal drug use
  • You can ask what an applicant may do in hypothetical situations
  • You cannot ask about past illegal drug addiction, which is generally considered a disability
  • You cannot manipulate questions to screen out applicants based on gender, race or other protected classes
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