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A fine line: Psychological exams and personality tests in employment

December 26, 2018
Ben Ritchie

Hiring a new employee is a crapshoot. An applicant can look great on paper and in a brief interview, but an employer will only really know if an employee is a good fit once he or she begins work. To get a better idea about job applicants’ interests, emotional stability, opinions, attitudes and personality, some employers are turning to psychological and personality tests.

There are other reasons that employers are administering such tests. Most states, including Idaho, have recognized the tort of negligent hiring. Employers have been forced to defend a growing number of lawsuits seeking remedies for crimes and other acts committed by employees that fall outside the employees’ scope of employment, such as thefts or assaults. In these cases, employers can be held liable for these claims when it is shown that the employer knew or should have known that an employee had the propensity to commit such acts and that such propensities could have been discovered by reasonable investigation. Such testing can demonstrate that the employer met its duty to investigate an applicant’s fitness for employment.

This article addresses the legal implications of such psychological exams and personality tests.

To analyze the implications of a test, the employer first needs to determine if the test is a “medical examination” under the Americans with Disabilities Act. The ADA prohibits employers from requiring job applicants to submit to medical examinations. However, the ADA does allow an employer to require an employee to submit to a medical examination after an offer of employment is extended to the employee, so long as the employer requires all applicants for the same job to undergo the same exam. Medical examinations must also be job related and consistent with a business purpose. The Equal Employment Opportunity Commission has provided guidance to determine if a psychological or personality test is a “medical exam” under the ADA. The EEOC defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” According to the EEOC, psychological tests that are “designed to identify a mental disorder or impairment” qualify as medical examinations, but psychological tests “that measure personality traits such as honesty, preferences, and habits” do not.

So, if an employer’s test will reveal a mental impairment, then it is a medical examination under the ADA and can only be administered after an offer is extended and if it is job-related and consistent with a business purpose. Such is the case even if the employer does not have a mental healthcare professional analyze the results.

If a test will not reveal a mental impairment, then it is more of a personality test and is not subject to the requirements of a medical examination under the ADA. However, there are other legal implications to using personality tests. First, there is nothing illegal about refusing to hire someone (or firing them for that matter) because of their personality. However, personality tests can be deemed discriminatory if they result in disparate treatment of or have a disparate impact on a protected group, including a certain race, national origin, gender, religion or age. In other words, if an applicant can show that the personality trait for which an employer was screening in a test was really a mask for discrimination against a certain class of people protected under the Constitution or other law, the employer could be found to have violated federal discrimination laws. For example, some standard personality tests inquire have questions about religion and could result in disparate treatment of job applications, Likewise, if a personality test is written in such a way that only people of a certain race get the best results, and in turn are hired over those of another race, such a test has a disparate impact and could be deemed discriminatory.

Second, a number of applicants and employees have alleged invasion of privacy with respect to psychological or personality tests. Idaho law does recognize a claim for invasion of privacy for “intrusion upon a person’s seclusion or solitude, or into his or her private affairs.” A best practice to avoid a potential claim arising from testing is to ensure that the employer has a compelling interest in screening for certain personality traits and that questions are job-related. The more personal the questions asked in testing, the more the employer has the duty to demonstrate a compelling interest in the information.

Psychological and personality testing can give an employer a picture of the personality, tendencies and beliefs of a job applicant. It is a tool that can assist employers in determining whether an employee will be a good fit for a certain job. However, it is important to be aware of these legal issues that can arise in testing so that the employer can walk the legal line for such testing.

Ben Ritchie is a litigator with the law firm Hawley Troxell specializing in insurance and liability defense and employment law. He is experienced in providing coverage analysis for insurance companies; defending insurance companies against claims of breach of contract and bad faith; defending employers against claims under the ADA, FMLA, other employment laws. In addition to his litigation experience, Ritchie also advises employers on various employment matters, including paid time off, workplace harassment, drug policies and termination issues.

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