An employer cannot avoid accountability for problematic pre-employment assessments by outsourcing applicant screening to outside vendors, the Equal Employment Opportunity Commission has signified. In a subpoena enforcement action, the EEOC asked a federal court to compel a third-party vendor to produce information about pre-offer suitability assessments that it administered for a public employer.
Pre-employment screening assessment items that reference prior complaints, EEOC activity, or legal proceedings are not automatically unlawful, but they are likely to draw scrutiny because they could deter applicants from engaging in federally protected activity.
The EEOC subpoenaed the employer’s vendor for information about assessment items that asked applicants about prior workplace harassment or discrimination complaints, EEOC charges, and participation in legal proceedings. The employer had indicated that it did not control or review such assessments.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.