January 21, 2019
Vivian Rodríguez / firstname.lastname@example.org
Attorney at Law
Article 408 of our Labor Code expressly sets forth that all persons, without discrimination, will enjoy the same opportunities to apply for any given job provided that all formal requirements have been met. Thus, and in compliance with the Labor Procedure Reform, many companies have reinforced their recruitment and selection procedures to avoid incurring in bad labor practices.
To achieve this, Human Resources Departments and supervisors have introduced a number of required documents and tests to determine the suitability of prospective candidates, including the so-called “psychometric test”, which intends to explore certain features in the character or personality of said candidates.
These tests are easily accessed, as they can be found in different websites and can turn into a great tool to document the selection process and determine if the prospective candidate has the necessary qualifications for the job. If this tool is not used properly, however, it may have harmful effects for your company.
Although there is no specific regulation regarding psychometric tests, it is necessary to adopt specific measures to avoid complaints on grounds of discrimination; for these purposes, the most important thing is to have objective reasons to select one person over another. In order to determine this, companies are advised to have a job profile on the vacant post as well as what tests and information are required for the company to assess if the candidate meets the requirements.
As soon as the necessary information for each job post is known, a psychologist must create, apply, review, and document the test in each candidate’s file, in order to have documentation supporting the selection decision as well as hand it over to the relevant person upon request.
As for the latter, according to the Law on the Protection of Persons concerning the Treatment of Personal Data, and in light of the right to informational self-determination – which entails the possibility for persons to know the use, destination, location and purpose given to their personal information – the interviewed candidate may request his/her test results and the company will be required to hand them over.
On top of that, and according to several court precedents of the Constitutional Chamber, it may be concluded that companies using this type of test must:
- Have a list of major items according to the position for which the candidate is applying, and solely assess what is relevant for said job.
- Ensure the collaboration of a psychologist to perform a specific test on a case-by-case basis, with whom the company will determine if the candidate meets the necessary characteristics for the job.
- Said psychologist must review the test, and hand it over to the candidate upon request.
- Keep the results and important documents during the selection process as evidence that the decision was adopted based on objective grounds.
- Test results should not be the only reason to reject a candidate, as these results should be reviewed as complement of other aspects assessed.
Is your company applying these measures? Is it using other tests and you don’t know whether these are being properly applied? We encourage you to contact your trusted lawyer for purposes of avoiding any discrimination-based claims when hiring new staff.