by Thomas P. Brady, Esq., Clark Hill PLC, Detroit
Some employers use personality or psychological tests to screen applicants and employees being considered for jobs or promotions. Such tests attempt to measure an applicant’s honesty, integrity,, motivation or other personality traits to determine if the applicant is a good fit for the position.
Proponents say personality tests are an economical way of screening employees.
However, critics argue that these tests might not accurately predict an individual’s honesty, integrity or other personality traits. Others say the tests violate the employee’s privacy.
There are two types of personality tests. “Objective tests” are paper-and-pencil tests that use true-or-false or multiple-choice questions. Employers frequently use objective tests when they need to test a large group. “Projective tests” are administered individually and ask the applicant to interpret ambiguous stimuli by responding in an open-ended manner.
Regardless of which test you might consider using, be aware of the legal risks they could pose.
ADA issues: a ‘medical’ test?
In Karraker v. Rent-A-Center Inc., a 2005 case decided by the 7th Circuit Court of Appeals with jurisdiction over Michigan employers, the employer had promotion applicants take the Minnesota Multiphasic Personality Inventory (MMPI) test. The court found that the MMPI constituted a medical examination under the ADA because it was designed, in part, to identify mental illnesses. Consequently, requiring promotion candidates to take the examination violated the ADA.
There are no other reported cases of applicants or employees challenging other types of personality tests under the ADA. The ADA prohibits conducting medical examinations or asking an applicant about any disabilities prior to hiring. It also prohibits requiring current employees to submit to medical testing except in certain circumstances.
The question is whether personality tests other than the MMPI violate the ADA. The answer depends on whether the particular test is “medical” or not.
Advice: The best practice is to hold off on testing until the applicant receives a conditional employment offer. Doing so is then consistent with the ADA’s prohibition of pre-hire, post-offer testing. Note that the tests must still be job-related.
Are tests discriminatory?
Employees may also challenge personality tests by claiming the exams have an adverse impact on groups protected by federal or state equal employment laws. The U.S. Supreme Court has ruled that tests that result in a lower selection rate for a protected group have an adverse impact, and are therefore invalid selection measures.
Under an adverse-impact argument, the employee has to show only that the selection test had an adverse impact on the protected group. The employee does not have to prove that the employer intended to discriminate against the protected group.
If the test does have an adverse impact, the employer must show that it is job-related for the position and consistent with business necessity.
A question of validity
Employers should ensure the personality test is validated like any other selection criterion. In other words, does it measure what it purports to measure in a reliable way that adequately predicts employee behavior? To meet that requirement, employers should review all validation studies before using personality tests. If you hire an outside provider to administer tests, ask about test validation before using the company’s services.
Employers should use care before using personality tests when selecting applicants to hire or employees for promotion. You should consult with a legal counsel that is familiar with testing issues. At a minimum, employers must verify that the test:
- Does not identify mental disabilities.
- Has no adverse impact on protected groups (e.g., age, race, sex, national origin).
- Has been validated.
Finally, keep the results of the test private to avoid any liability for breach of an employee’s privacy rights.
Thomas P. Brady is a member of the Labor and Employment Practice Group of Clark Hill PLC, practicing in its Detroit office. You can contact him at (313) 965-8291 or at TBrady@clarkhill.com.
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