Could Workplace Personality Tests Lead to Unlawful Discrimination?

Personality testing of potential and current employees for hiring, promotions and training has become standard procedure in many industries. Employee testing has expanded to a $500 million industry, and is estimated to be increasing at a rate of 10-15 percent each year.

The question is whether these tests are fair. Employees may face termination, demotion, or lateral moves within the company rather than advancement as well as other consequences based on test results. Candidates who are well-qualified for a specific job could be shut out based on test results.

There are several common personality tests used in corporations or by consultants brought in to “streamline” an operation. These tests claim to accurately assess personality, skills, employee cognitive abilities and several other traits.

The issues of concern involve the potential for workplace discrimination based on tests that spew out results based strictly on data-driven algorithms.

Employers using personality tests

Employers using cognitive abilities tests

Employers testing basic literacy and/or math skills

Employers using job skill testing

Employers using psychological measurement or assessment

Source: Society for Industrial and Organizational Psychology

Most Commonly Used Employer Personality Tests

There are several tests that are used commonly in hiring, and there are many more in development or that have recently entered the market. Some of the most common tests used in pre-employment assessment include:

• Myers Briggs Type Indicator (MBTI)
• Minnesota Multiphasic Personality Inventory (MMPI)
• Five Factor Model Tests (FFM)
• The Sixteen Personality Factor Questionnaire (16PF)
• Dominance, Influence, Steadiness, Conscientiousness (DISC)
• Caliper Profile
• California Psychological Inventory

There are some legal consequences that employers may face if they make decisions to hire personnel based on results of personality assessments. Issues related to whether the questions used are actually relevant to the suitability for the job, the accuracy of the results due to algorithm assessment and the potential for test results to lead to discriminatory actions have arisen.

Title VII: Discrimination Cases and Employer Personality Tests

Civil rights laws prohibit employers from discriminating based on characteristics such as race, country of origin, religion, age, sexual orientation and gender. Any test that is found to have been designed, intended or used to discriminate may lead to legal problems for the employer.

The Americans with Disabilities Act prohibits employers from asking health-related questions, but there are real concerns that questions on some employment pre-assessments could make it easier to identify candidates who are suffering from mental illnesses, and in so doing, violate the law. There is an ongoing investigation by the U.S. Equal Employment Opportunity Commission (EEOC) to determine whether personality tests automatically eliminate those with certain mental illnesses, such as depression or bipolar disorders, and if so, whether these tests violate federal law.

Questions remain as to the efficacy of personality tests and their legal ramifications. There are various legal challenges related to the use of these tests, and it is expected that as the use of personality testing for pre-hire assessments increases, the number of legal actions will also increase.

Personality Assessments Used When Downsizing Companies

Some consulting firms that specialize in cutting personnel in corporate downsizing use testing for personality assessment. The results of the tests could lead to layoffs, lack of advancement and other corporate moves affecting an employee’s career. An employee who has been working at a company for years may suffer both financially and personally if laid off during a restructuring if the decision is based in part or largely on the results of personality tests. This activity could lead to a wrongful termination legal action.

Any employees who have suffered negative consequences due to employment personality testing results should contact an employment law attorney for more information.

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Sources:

• The Wall Street Journal – Are Workplace Personality Tests Fair?
• The Ladders – Top Personality Tests Used in Hiring
• Cornell HR Review – Personality Tests in Employment Selection: Use With Caution

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