Global talent assessment: US antidiscrimination law shoots itself in the foot

Ethical dilemma for corporates who want to hire staff in the US

It’s now off-limits in US and also in Australia to ask applicants about their country of origin. Gender and religious beliefs are also taboo. This is to counteract discriminatory selection based on origin, sex and religious belief.

That people are discriminated against based on these data is undisputed. As is, in our opinion, the need for measures to counteract this discrimination. It is, therefore, self-evident that discrimination during recruitment and selection should be tackled. However, not being able to ask someone’s origin, does create an assessment problem.

Best practice: assessment in your native language

It is best practice in the assessment industry to have candidates take tests in their native language. Especially timed and language-sensitive capacity/ability tests such as verbal reasoning tests, show lower scores when not taken in the employee’s native language.

You can see where this is going, can’t you. If you’re not allowed to know the native language then, as an assessment specialist, you don’t know in which language you should offer these tests.

Legalisation of assessments

We have spoken to some of our corporate customers about whether offering the candidate a selection of languages is an option. The candidate can then select the capacity test in their native language. Legal departments have, however, reacted reluctant to agree to this suggestion. They see the risk from a legal point of view, that this way the candidate’s native language can still be traced.

This could result in discriminatory decisions on selection, based on their origin, gender or belief. These are a lot of ‘what-if’ arguments. But, fair enough, you could use this information to discriminate against certain candidates.

Where is this assessment problem an issue?

For now, it seems to only be a problem in the US and Australia, during recruitment steps where capacity tests are used for initial screening.

If a candidate has already been spoken to, or is already employed by the company, then the native language is obviously known. Applying this type of test in their native language, is then no longer an issue.

Unintentional effect during assessment-based screening

The legislation means that the safest option in the US and Australia, legally, is to offer capacity tests during screening in English, because the native language could otherwise become known and discriminatory selection could be made based on this information.

This, of course, puts candidates who were raised speaking a language other than English at an unintended disadvantage.

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