Legal Issues and Concerns Related to Personality Testing in the Hiring Process

Finding the perfect employee is not an easy task in today’s competitive market. Employers used to settle for standard job applications. These days employers are using various selection and auditioning methods during the interview process. One of these methods is requiring job candidates to undergo personality tests, ranging from overt integrity tests to others which are personality-oriented or taken in clinical settings – thought to provide certain benefits and insights into the character and personality of a potential hire. However, you must carefully weigh the risks associated with such a recruitment practice.

ADA, Title VII & ADEA Violations

Personality testing has the potential of violating the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”). For example, if an applicant can show that the personality trait for which the employer screened was really a mask for discrimination of a protected class, the employer could be found to violate federal discrimination laws. Testing clearly presents risks and there have been numerous lawsuits related to personality testing under the ADA, Title VII, and the ADEA, that include the litigation of topics like:

1. Bias in determining traits important for the job;
2. Questions that implicate protected characteristics;
3. Bias in administration and scoring;
4. Whether the testing is a prohibited pre-offer medical examination;
5. Whether the test suggests a disability or a perceived disability based on the results; and
6. Administration of the test to discriminate based on age.

So, if you are screening for a personality trait that connects with a protected class and you make your decisions based on that trait, such practice can constitute discrimination.

Professional Administration

Title VII, the ADA, and the ADEA all have requirements for all employee testing that employers must adhere to when giving a personality test. For example, Title VII permits employers to administer professionally developed ability tests and take action based on the result. But such tests must be implemented in a way that does not discriminate against protected classes and ideally validated in advance as not having a discriminatory effect. Employers cannot adjust the test scores based on an individual’s protected characteristics, using different cut-off scores for different protected classes or, otherwise, altering the results of the test in any way. Lastly, and most importantly, the test must be job-related for the position at issue and consistent with a business necessity.

Privacy Violations

Another issue of growing legal concern for employers using personality tests is a potential privacy violation. This comes up especially in states like California, whose state constitutions protect the right to privacy. While the U.S. Constitution has no applicability to private employers, public employers must comply with its requirements, and states, such as California, that provide right to privacy protections – many of which are broader than the federal constitution – have applied such privacy standards to private employers who may face claims based on the intrusiveness of the questioning (i.e., the questions are highly personal and/or offensive), or a failure to protect the privacy of the results. Thus, test questions administered to employees must not be unreasonably intrusive and, must be job-related.

With the tort of negligent hiring now recognized in a majority of the states, employers have been forced to defend a growing number of suits seeking redress for crimes committed by employees, usually thefts or assaults that victimize customers or coworkers. Psychological testing becomes relevant in these cases, as plaintiffs generally allege that the employer should have been aware of the characteristics of the employee causing the harm. Testing provides probative evidence that the employer met its duty to investigate reasonably an applicant’s fitness.

You should consult with an industrial-organizational psychologist and an employment attorney to ascertain the test validity.  This will allow you to address any potential problems and refine your employment selection policies and procedures which in turn will minimize your liability exposure. At Hackler Flynn & Associates, we can direct employers to avoid running afoul of any laws associated with employment personality testing.

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post.