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EPLI: Are Workplace Personality Tests Discriminatory?


EPLI Are Workplace Personality Tests DiscriminatoryEEOC, Others Looking at Use of Tests and Workplace Discrimination

There are different screening tools companies use to hire the best fit for a position in their organization including having potential employees take personality tests. In fact, over the past decade the use of online personal tests by employers as an employment practice has surged in an effort to streamline the hiring process, particularly in the area of customer service. According to Josh Bersin, principal of consulting firm Bersin by Deloitte, as quoted in a recent Wall Street Journal article, “such tests are used to assess the personality, skills, cognitive abilities and other traits of 60% to 70% of prospective workers in the U.S., up from 30% to 40% about five years ago.”

Now these tests are coming under scrutiny, cites the same Journal article. Although it’s not illegal to use pre-employment tests, as long as these tests don’t discriminate against applicants in protected groups, problems can arise if the tests unintentionally screen out protected group members. For example, the Equal Employment Opportunity Commission (EEOC) is investigating whether personality tests discriminate against people with disabilities. As part of the investigation, officials are trying to determine if the tests leave out people suffering from mental illnesses such as depression or bipolar disorder, even if they have the right skills for the job, according to EEOC documents. For instance, in the personality test that RadioShack administers potential applicants are asked whether they agree with the following statement: “Over the course of the day, I can experience many mood changes”. One of McDonald’s test statements reads as follows: “If something very bad happens, it takes some time before I feel happy again.”

Although officials won’t comment on the investigation, Christopher Kuczynski, EEOC acting associate legal counsel, spoke in general terms to the Journal, saying:  “If a person’s results are affected by the fact that they have an impairment and the results are used to exclude the person from a job, the employer needs to defend their use of the test even if the test was lawful and administered correctly.” The Americans with Disability Act (ADA) prohibits employers from conducting pre-employment medical exams. Though most employers are only interested in identifying personality traits necessary for a particular position, some personality tests might also have the ability to identify a medical condition, thereby violating the ADA.

The investigation by the EEOC into personality tests and whether they’re discriminatory have caught the attention of employers. A ruling against personality tests would “set a tremendous precedent,” forcing companies and test makers to prove their tests aren’t discriminatory, explained Marc Bendick, an economist and consultant who studies workforce diversity issues.

The bottom line is when companies choose to use personality tests as one of their screening methods for job positions, it is wise that these tests are constructed properly to avoid potential legal ramifications as a result of inadvertent discrimination. It’s recommended that if a company utilizes a personality test an attorney specializing in employment law should review it.

Axis Insurance Services specializes in employment practices liability insurance (EPLI) and can provide assistance in helping you with compliance issues and securing the right type of coverage. An EPLI policy provides protection against workplace allegations and lawsuits involving discrimination, harassment, wrongful termination, failure to employ or promote, wrongful discipline, breach of employment contract and other employee-related issues. For a review of your current insurance, contact us at (877) 787-5258.

Source: Wall Street Journal

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Blogged on: October 7, 2014 by Mike Smith
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