Larry J. Rector
Steptoe & Johnson PLLC

Vol. 13, No. 10
April 2008

HIRING

Employers and personality tests: Are they compatible?

There's nothing fun about the hiring process. You have to advertise for, screen, and select candidates on top of your already busy schedule. After all the time and effort you put into hiring decisions, you want to make sure you've hired someone who is competent and qualified to do the job and will be a good personality fit for your organization. To help with the screening process, many of you ask us whether personality or integrity tests are good tools to use as a part of your hiring process. As discussed in this article, those tests raise legal issues that may prevent them from being "your type."

Are personality tests really useful?

The threshold question about any screening method is always whether it actually works. Can personality and integrity tests really give you information about a job applicant that will indicate whether she will be a successful employee? While there is research that vetted tests like the Minnesota Multiphasic Personality Inventory (MMPI) are valid, many tests weren't created for testing employment applicants. The MMPI, for instance, was designed to reveal mental illness.

The testing is also ineffective when the purposes of the questions are obvious. Remember taking the Myers-Briggs Type Indicator in your college psychology class and answering questions that were obviously intended to determine whether you were introverted or extroverted? Similarly, integrity testing to determine the honest nature of an applicant is likely to tip off a candidate about what you're trying to determine. For instance, how many of your applicants are likely to answer a question like "Would you take money when no one was looking?" in the affirmative?

Of course, these questions are hypothetical and oversimplifications, but they raise a legitimate concern about whether such testing can actually produce what you want to know: Is this applicant someone who will be a good employee? Also, it's critical that you actually review the questions of any test you give and consider whether they are truly related to the job.

Importantly, you should consider whether you could obtain the same types of information through good interview questions. Perhaps posing appropriate hypothetical questions can elicit similar clues about a person's decisionmaking and personality ("How would you handle this situation?"). Similarly, spending longer periods of time with an applicant by having more than one person interview her or by taking her to lunch can provide opportunities to glimpse more of her attitudes and personality.

Legal incompatibilities

Even if you find a valid and effective test that meets your needs and expectations, you must consider the legal implications of using it. Although there's no statutory or case law in West Virginia specifically prohibiting personality testing of job applicants, using these tests may run afoul of other laws.

The biggest legal challenge facing the use of such tests is whether they violate disability discrimination laws. In particular, some courts have found that personality tests are impermissible prehire medical examinations because they may provide information about an applicant's mental health. As you know, you're prohibited from asking medical questions of an applicant before you make a conditional offer of employment. Thus, you may be violating the Americans with Disabilities Act or the West Virginia Human Rights Act by giving a personality test before making an offer of employment.

While Equal Employment Opportunity Commission guidance on this issue distinguishes between tests that are designed to identify a mental disorder and psychological personality tests, you may not have that information when you select a test.

If you're using a test that could reveal medical information that would affect your hiring decision, you have opened a whole new Pandora's box of problems. If the person has a mental disorder, you will need to consider whether he is able to perform the essential job duties with or without accommodation. That adds a new set of issues when you were just trying to get a sense of whether the employee would be a good fit in your organization.

Other legal issues can rear their ugly heads in this context as well. Are there questions that tend to discriminate against a certain gender, religion, race, or national origin? Some tests, for instance, ask questions about faith and spirituality, which could lead to a religious discrimination claim. Perhaps more likely, could personal questions on the tests be an invasion of the applicant's privacy? Some personality test questions deal with relationship issues and even sexuality. Making a job-relatedness claim on such questions would probably be a stretch.

Bottom line

You have to weigh the effectiveness of the information you learn from personality and integrity tests against the potential legal problems you may have with them. Especially in West Virginia, it seems like an easy argument can be made that these types of tests may violate disability laws as well as potentially rise to the level of an invasion of privacy.

Of course, you can limit these problems by selecting tests that have been developed specifically for employment screening, don't test for mental disorders, and are valid measures of personality issues that may affect an applicant's success in the position for which you're hiring ― if such a test exists. Sometimes it may be easier to admit that a relationship just isn't working.

You can research hiring, employment testing, or any other employment law topic in the subscribers' area of www.HRhero.com, the website for West Virginia Employment Law Letter. Access to this online library is included in your newsletter subscription at no additional charge.

Copyright 2008 M. Lee Smith Publishers LLC

WEST VIRGINIA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area. For further information about the content of any article in this newsletter, please contact any of the editors.