We’re trying to make our applicant evaluation process as comprehensive as we can. Some members of our applicant task force team have suggested that we use an honesty test and a personality profile to help us evaluate candidates. Are these tests legal?
Some employers use personality profiles and honesty tests to complement other tools (such as pre-employment background checks) to make informed hiring decisions. Employers using these tests must be mindful of the applicable legal constraints, including the limitations on “disability-related inquiries” and “medical examinations,” and to a lesser extent, state law privacy protections. The information below is intended as a very basic primer for California employers.
Before implementing any pre-employment test, employers should do the following:
- Ask the testing vendor about the underlying “validation” for the questions;
- Discuss with the vendor whether the test complies with applicable laws; and
- Consult with an employment law attorney. This is vital because legal challenges tend to take the form of class action lawsuits, not individual claims.
Title VII Issues
Personality profiles and honesty tests are different from skills-based and general intelligence testing. Based on U.S. Supreme Court case law dating back more than 30 years, skills-based and general intelligence testing raises concerns about the disproportionate exclusion of job applicants who fall within one or more protected classifications (commonly known as “adverse impact”).
ADA Issues
As for their legality, personality profiles and honesty tests can implicate issues arising under the Americans with Disabilities Act (ADA) and its state law counterpart, the Fair Employment and Housing Act (FEHA). Employers need to ask: Is it a test regulated by the ADA and/or FEHA? If so, when can the test be administered, and how do I know it complies with the ADA/FEHA?
Regulated tests: The ADA regulates pre-employment medical examinations and disability-related inquiries, including psychological examinations. The ADA does not define these terms. According to the Equal Employment Opportunity Commission (EEOC), a medical examination is “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” A disability-related inquiry is a question (or series of questions) that is likely to elicit information about a disability. FEHA also does not define these terms, but courts interpreting the FEHA tend to respect guidance from the EEOC.
Timing and justification: The ADA differentiates between the pre-offer and post-offer/pre-employment stages of the hiring process. Pre-offer disability-related inquiries and medical examinations are prohibited. Post-offer entrance examinations and disability-related inquiries are permitted as long as all job candidates for the position are asked to submit to them. California law is more stringent than federal law. Disability-related inquiries and medical examinations are permitted only post-offer, and must be posed to or required of all entering employees in the particular job classification. Most important, they must be “job-related and consistent with business necessity.”
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Psychological Testing Issues
Personality profiles and honesty tests are regulated under the ADA if they are medical examinations or include disability-related inquiries. Here is one example from the EEOC:
A psychological test is designed to reveal mental illness, but a particular employer says it does not give the test to disclose mental illness (for example, the employer says it uses the test to disclose just tastes and habits). But, the test also is interpreted by a psychologist, and is routinely used in a clinical setting to provide evidence that would lead to a diagnosis of a mental disorder or impairment (for example, whether an applicant has paranoid tendencies or is depressed). Under these facts, this test is a medical examination.
The EEOC has stated, however, that psychological tests are not automatically considered to be medical examinations. Rather, the design and actual and intended use of the test must be taken into account. The EEOC’s advisory materials state in pertinent part:
May an employer give psychological examinations to applicants [at the pre-offer stage]? Yes, unless the particular examination is medical. This determination would be based on some of the factors listed [elsewhere in the Guidance], such as the purpose of the test and the intent of the employer in giving the test. Psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment (for example, those listed in the American Psychiatric Association’s most recent Diagnostic and Statistical Manual of Mental Disorders (DSM)).
On the other hand, the EEOC says, “if a test is designed and used to measure only things such as honesty, tastes, and habits, it is not medical.” For example, an exam given only to determine whether an applicant is likely to lie is not a medical examination.
In my experience, testing vendors are increasingly sensitive to the need to minimize ADA risks. Nonetheless, before implementing any particular test, an employer should ask the vendor some serious questions and discuss the test and testing format with experienced legal counsel.
Privacy Law Issues
For the most part, privacy protections derive from state law. Therefore, the nature and extent of privacy safeguards tend to vary from state to state. In the past, courts have permitted challenges to specific personality tests on the ground the tests violated state privacy law protections. As an example, one federal district court in California refused to dismiss a class action against a national employer who asked job applicants to disclose their sexual orientation. In my experience, the testing vendors now tend to steer clear of truly intrusive questions. ADA compliance tends to be the more pressing issue.