A quest to find and hire the best applicants prompts many employers to look for ways to quickly eliminate all but the most promising candidates. When online job postings unleash a flood of applications, many employers turn to software that includes personality testing as a way to reduce the amount of valuable time needed to pore over resumes. 
A recent report in The Wall Street Journal exploring whether personality tests discriminate against applicants with disabilities is garnering a lot of attention. And in the face of lawsuits and an investigation by the Equal Employment Opportunity Commission (EEOC), some employers are changing their tests or rejecting them altogether.
The report in The Wall Street Journal gives examples from various employers’ tests. One test asks applicants to say whether they agree with the statement “Over the course of the day, I can experience many mood changes.” Another test asks applicants if they “believe that others have good intentions.” Another asks jobseekers if they agree with the statement “If something very bad happens, it takes some time before I feel happy again.” And another asks if they agree with the statement “Sometimes there is so much stress I wonder how I am going to make it through the day.”
EEOC officials wouldn’t comment on the investigation for the Journal report, but Christopher Kuczynski, EEOC acting associate legal counsel, was quoted as saying, “if a person’s results are affected by the fact that they have an impairment and the results are used to exclude the person from a job, the employer needs to defend their use of the test even if the test was lawful and administered correctly.”
ADA threat
Susan Fentin, an attorney with Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts, says employers using personality tests should be cautious not to violate the Americans with Disabilities Act (ADA). If the tests aren’t properly structured, they can constitute medical examinations, which are prohibited under the ADA Amendments Act before an offer of employment, she says.
Even tests administered after an employment offer can be risky. “If the company is asking applicants to take these tests after a job offer, then they face the possibility that the responses could lead the employer to perceive the applicant as disabled, and a rejection based on a perceived disability is as viable as one that might be based on a known disability,” Fentin says.
Some companies vet personality tests to try to make sure they meet ADA standards, “but even if a test is vetted, I think that relying on answers in personality tests leaves the employer at risk with regards to a charge of disability discrimination,” Fentin says.
Allison Wannop, an attorney with Dinse, Knapp & McAndrew, P.C. in Burlington, Vermont, also has concerns about the tests. “I don’t know about specific personality tests, but any time you analyze someone’s personality there could be a concern that an employer is simply trying to select out a certain type of person, whether that person be disabled or of a certain gender, race, national origin, etc.,” she says.
Wannop says employers should be aware of state laws as well as federal laws such as the ADA and Title VII of the Civil Rights Act of 1964.
EEOC advice
The EEOC has a fact sheet on employment tests and selection procedures that points out that employers can legitimately use a variety of tests, including personality tests, cognitive tests, medical examinations, credit checks, and criminal background checks. But improper use of the tests “can violate the federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age (40 or older),” the fact sheet says.
As to how personality tests can implicate the ADA, the fact sheet says that the ADA makes it unlawful to use “employment tests that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the test … is shown to be job-related and consistent with business necessity.”
In addition, the ADA makes it unlawful for employers to fail “to select and administer employment tests in the most effective manner to ensure that test results accurately reflect the skills, aptitude or whatever other factor that such test purports to measure, rather than reflecting an applicant’s or employee’s impairment.”