Employers Face Risks With Use of a Personality Test


By Kaja Whitehouse From Dow Jones Newswires


A personality test that is widely considered to be the most popular in the world was recently judged inappropriate as a pre-employment job-screening assessment.

Last month, the U.S. Court of Appeals for the Seventh Circuit, in Chicago, ruled that a personality test used to determine promotions by a national retail chain based in Plano, Texas, qualifies as a medical exam because it asks questions that could reveal certain mental disabilities. The Americans With Disabilities Act, or ADA, prohibits pre-employment medical exams.

The makers of the test say it is widely known that their test is inappropriate for certain types of employment testing, raising questions about how much employers know about personality testing and their legal limitations.

"Ask the employer and they would tell you that this is a surprise for them. And this is a test that is utilized by employers all over the country," said Steve Bernstein, an employment lawyer with law firm Fisher & Phillips in Atlanta.

The case involved three brothers who were seeking promotions by their employer, Rent-A-Center Inc., a chain of stores that rents furniture, electronics and appliances. Workers seeking promotions had to take a series of tests, one of which assessed personality using the Minnesota Multiphasic Personality Inventory, an exam often used in criminal settings.

The brothers were denied promotions and they sued on the basis that the test violated provisions of the ADA. They lost at first in a district court but won the appeal.

"There's nothing new in this ruling for us," said Beverly Kaemmer, associate director at the University of Minnesota Press, which owns the intellectual property rights to the exam. The test has long been deemed a clinical test and, therefore, inappropriate for pre-employment screening, Ms. Kaemmer said. "We've known about this since ADA came out in 1990," she said.

Yet the ruling indicates that the rules surrounding personality testing haven't always been clear to employers, employment lawyers said. Also, knowing which tests are permissible is a subject often left open to interpretation.

"The law is very clear. The interpretation sometimes become difficult in terms of administration of assessments and so forth," said Joe Sommers, director of training and developments at ZeroRisk HR Inc., a pre-employment testing facility in Dallas.

It isn't just employers who seem confused: Before the ruling from the federal appeals court, a district judge presiding over the case determined that the test was permissible.

According to the ADA, medical examinations of prospective employees are allowed only after a conditional offer has been made. In other words, an employer can require medical examinations, mental or physical, only after agreeing to hire to the person based on all other factors.

When a job offer comes after a medical examination, the results may be used to make employment decisions only to the extent that they are considered a business necessity. For example, a job that requires heavy lifting may be pulled from someone whose medical examination reveals a bad back or damaged knees. Psychological examinations, therefore, tend to be limited to professions where mental and emotional stability are required for public safety, including police officers and firefighters.

Employers are allowed to test prospective employees before making an offer as long as the test assesses generic character traits, such as honesty and work ethic. Once the test starts asking questions that delve into psychology, however, the employer may be violating federal law.

The vast majority of pre-employment tests are safe to use and don't violate the ADA, said David Arnold, general counsel with recruiting and employment testing company Wonderlic Inc. in Libertyville, Ill. They seek to find out who would be a good leader and whether prospective employees would get along well in the workplace. "There's nothing psychological about them," he said.

Roughly 30% of American companies use personality tests, according to a 2003 survey by job recruitment firm Management Recruiters International Inc. in Cleveland.

Still, employment lawyers suggest that employers should take a good look at the tests they offer to ensure that they are in compliance with the law. Some lawyers are also warning that employers stay away from personality examinations unless they can demonstrate a specific need. "It's just not advisable to use the test unless you have a legitimate reason," said Marc Katz, an employment lawyer with Jenkens & Gilchrist in Dallas.

Meanwhile, the University of Minnesota Press may consider "clarifying the issue for some customers," Ms. Kaemmer said. Currently, employers are warned about the limitations of the exam in literature that comes with the test, she said.

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