HR, Screening, Assessment, Interviewing, Training & Compliance

Job Interview Personality Tests: Do They Pass or Fail Legal Scrutiny?

A growing number of businesses now require job applicants to take a personality test as part of the hiring process. The tests may include the Myers-Briggs or the DISK assessment, which are both designed to measure certain personality traits. From a legal perspective, the tests are permissible in most cases, but there are a few legal land mines to be aware of.

Personality

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Purpose of Personality Tests

Employers use a wide range of personality testing during the interview process. One common form of assessment is called an integrity test, which is designed to measure whether the prospective hire is likely to steal from the company or otherwise engage in illegal activity while on the job.

Historically, it was common for employers to issue preemployment polygraph tests to applicants. After private employers were barred from issuing such tests by the Employee Polygraph Protection Act of 1988, companies have shifted to questionnaires that measure applicants’ attitudes about theft and other types of wrongdoing and ask them to disclose their own past incidences of theft and wrongdoing. Research has established that the results of these types of tests can predict future theft from the company.

Employers also use tests that attempt to measure broader personality traits. For example, the Myers-Briggs test assesses individuals across four spectrums:

  1. Extraversion vs. introversion;
  2. Sensing vs. intuition;
  3. Thinking vs. feeling; and
  4. Judgment vs. perception.

A person’s scores across the four metrics constitute their overall personality type. For example, an “ISTJ” is someone who scores higher on the introversion, sensing, thinking, and judgment ends of the respective spectrums, and there’s an entire cottage industry that will predict how people will behave, what their likes and dislikes will be, and, most importantly for HR executives, what type of work they will find fulfilling based on their personality type.

Legal Risks

No federal law makes administering a personality test in the hiring process illegal per se. One potential claim employers could face is an allegation that the tests are discriminatory. Of course, Myers-Briggs personality types aren’t recognized as protected classifications, so the applicant would need to argue that he was treated unfairly in connection with the test on account of his race, gender, or other protected trait.

Certainly, it would be illegal to require only male applicants to take a test. But you also should be on the lookout for any disparate impact your testing might have, meaning the results of the test tend to adversely affect members of a protected class in a way that isn’t related to the job and the business’s needs. These challenges are rare, but not unheard of.

You also should be aware of the Americans with Disabilities Act’s (ADA) prohibition on conducting medical examinations or inquiring about whether an applicant has a disability. The Equal Employment Opportunity Commission (EEOC) has published guidance that clarifies you can administer personality tests as long as they couldn’t be used to identify a mental disorder.

Third, you may face claims that these types of tests violate an applicant’s right to privacy because either the questions themselves are too intrusive or you fail to maintain the confidentiality of the applicant’s answers. In other jurisdictions, applicants have successfully filed claims against public employers by citing the U.S. Constitution’s privacy protections and against private employers by citing relevant state laws.

There are no Maine laws, for instance, that prohibit personality testing outright. And employers with locations in multiple states should be aware of laws particular to those states. For example, Massachusetts has an outright prohibition on using integrity tests in the hiring process, while Rhode Island law states that an integrity test cannot be the primary basis for denying someone a job.

Takeaway

In most cases, administering personality and integrity tests to job applicants is perfectly legal. So should your business join the trend? Perhaps. It can be so difficult to select the best applicant from a pile of résumés that any additional insight into the person you are hiring would seem to be quite valuable to the hiring business.

It’s worth keeping in mind, however, that tests like the Myers-Briggs and the DiSC were never meant to assess whether a person can perform a given job well. Indeed, relying on stereotypes about what type of personality type is best for a certain position could cause you to overlook an otherwise outstanding candidate who doesn’t fit that stereotype. Meanwhile, you may select a lesser candidate who managed to game the test to pick answers that fit the stereotype you had in mind.

Personality tests can be useful tools, but they should be considered in conjunction with all of the traditional job-screening methods, including résumé reviews, interviews, and reference checks.

Connor Beatty is an employment law attorney with Brann & Isaacson and a contributor to Maine Employment Law Letter.  He may be contacted at CBeatty@brannlaw.com.