Personality Tests for Candidates Unlawful?

Use caution when conducting personality tests on potential employees as a narrow line exists between a legal personality test and an unlawful medical exam

Employers have been testing job applicants for many years. For example, it is not unusual for employers to test applicants on how quickly they can type or how they would react when faced with certain crisis scenarios. More recently, though, the standard practice is to give personality assessment tests to weed out the ever-growing applicant pool. Personality tests reveal important aspects about an applicant’s work habits, her ability to get along with others and her dedication to the job. At what point, however, do these tests become a trap for employers by revealing too much about the applicant thereby subjecting employers to potential lawsuits?

The Americans With Disabilities Act (ADA) prohibits employers from requiring medical examinations or asking disability-related questions before an offer of employment is made. Neither the ADA nor its regulations define medical exam. However, the Equal Employment Opportunity Commission (EEOC) defines a medical exam as a procedure or test that seeks information about an individual’s psychological or mental impairments or health. The EEOC analyzes several factors in determining whether a test is a medical exam, including whether the exam is designed to reveal an impairment of physical or mental health, and whether the employer’s intent is to determine whether the applicant has a disability.

If a personality test reveals that the applicant has characteristics that lead to excessive anxiety, depression or certain compulsive disorders, then it likely will be considered an unlawful medical exam if given before an employment offer is made. On the other hand, if a personality test is designed and used to reflect only an applicant’s honesty, preferences and habits, then it might not be considered a medical exam and the employer may provide the test before an offer is made. The line, however, is not bright or clear.

Examples in Action

For example, in one case, an employer asked job applicants whether they agreed or disagreed with the following four statements:

• People do a lot of things that make you angry.
• There’s no use having close friends; they always let you down.
• Many people cannot be trusted.
• You are unsure of what to say when you meet someone.

The Rhode Island ACLU believed these questions fell into the “medical exam” camp and filed a complaint against that employer. The employer and the ACLU ultimately reached a settlement and the employer agreed not to ask those questions.

In another case, an employer chose questions from the Minnesota Multiphasic Personality Inventory (MMPI) and gave them to applicants. The MMPI is a widely used test to assess depression, hysteria, paranoia and mania. That employer was sued and the court found that, because the test was in part designed to identify mental disorders and impairments and not just to test for the employee’s personality traits such as honesty, it was an improper medical exam.

Comply with the Law

Given the risks involved with pre-offer tests and exams, it is important for employers to review their pre-offer procedures, and seek legal assistance in doing so, to ensure full compliance with the law.

Emma Luevano is a partner at Mitchell Silberberg & Knupp LLP (www.msk.com) and represents management in a variety of labor and employment matters, including sexual harassment and other forms of discrimination, public policy violations, wrongful termination, wage and hour issues, and retaliation.