Employers that use personality tests and other selection procedures to make hiring and promotion decisions face potential claims that their procedures are discriminatory. Thus, each employer should attempt to avoid legal pitfalls before rolling out such testing.

In recent years, employers increasingly have turned to recruitment tests to help them evaluate new hires and make promotion decisions. Personality tests are designed to obtain information and enable employers to make job performance predictions. They commonly measure certain personality traits including extroversion, emotional stability, agreeableness, conscientiousness and openness to experience. An integrity test is a type of personality test aimed at assessing an applicant’s honesty, trustworthiness and dependability. Other employment tests assess reasoning, memory, perception and physical ability to perform particular tasks. These tests have grown in importance because of the reluctance of former employers to opine on a candidate’s qualifications and job performance and the increasing expense of recruiting top applicants and promoting qualified employees.

Nevertheless, each employer should be aware that such testing poses significant legal risks including discrimination and invasion of privacy claims. Employers run the risk of violating three major federal anti-discrimination laws: (1) Title VII of the Civil Rights Act, which prohibits discrimination based on race, sex and national origin, (2) the Americans with Disabilities Act, which bars discrimination against applicants and employees with disabilities; and (3) the Age Discrimination in Employment Act, which prevents employers from discriminating against individuals who are 40 or older. Title VII poses a unique potential problem for employers because it not only outlaws intentional discrimination but also bans neutral tests or procedures that have the effect of discriminating against applicants and employees, known as “disparate impact” discrimination.

In 1978, the U.S. Equal Employment Opportunity Commission adopted Uniform Guidelines on Employee Section Procedures under Title VII. The UGESP provided guidance as to how employers can determine if their employment tests and selection procedures were lawful for purposes of assessing potential Title VII disparate impact discrimination. These guidelines provide several different ways that employers can show that their tests and screening procedures are job-related and driven by business necessity. These methods are called “test validation.”

In addition, employers must be mindful of the wide array of state and local laws that regulate employment tests and screening procedures. For example, certain states strictly limit how an employer may go about conducting a criminal background check of a job applicant.

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