Many companies flooded with resumes are using such tests to pare down the endless job applications they receive via job boards and their own company sites. The problem – a potentially legal one – arises since these assessments oftentimes weed out job seekers with mental disabilities.
CVS Caremark was one company which found itself in the hot-seat. Red flags were raised when potential candidates were being asked to indicate their agreement or disagreement with statements such as:
- People do a lot of things that make you angry;
- There’s no use having close friends – they always let you down;
- Many people cannot be trusted;
- You are unsure of what to say when you meet someone.
Based on statements from several applicants, the Rhode Island ACLU filed a complaint with the state’s Commission for Human Rights. According to Steven Brown, the organization’s executive director, the Commission found “probable cause” that the test being administered was in fact discriminatory. CVS Caremark recently settled and agreed to remove the problematic questions.
According to some legal and human resources experts, the CVS case may be the tip of the iceberg. The increasing use of personality tests in the application and hiring process is somewhat uncharted territory. Depending on the questions asked, individuals with mental disorders could be facing discrimination.
Employers’ use of these tests to weed out applicants stems from the increase in Internet use for recruitment and job applications. As Gavin Appleby, an attorney with Littler Mendelson, points out: “before the Internet, an employer might put an ad in the paper and get 30 people applying. Today, a position posted on a job board could get 300 or even 3,000 responses.”
Many employers are using tests that may be considered medical examinations under the Americans with Disabilities Act. These tests can create substantial adverse impact on protected categories of persons, and frequently are not properly validated. “Unfortunately, many employers do not consider whether the tests they use are legally defensible,” says Appleby.
An estimated one-third of employers use personality testing for hiring and promotion decisions, and the practice is gaining popularity. The employment assessment market is currently worth about $2 billion, up 15 percent from last year, according to Josh Bersin, President & CEO of California research firm Bersin & Associates.
Bersin estimates that this pre-hire testing has been growing by as much as 20n percent annually in the past few years, driven by high unemployment. Industries flooded with resumes such as retail, food service and hospitality are among those who frequently use such testing.
While the use of these kinds of assessments is nothing new, how they impact job seekers with disabilities remains “a gray area.” Bersin adds, “A lot of work has been done over the years on how personality tests impact gender, race or age bias, but I don’t know if anyone has done enough research yet on mental disabilities.”
Since employers are legally restricted in what can be asked before offering a position to a candidate, administering personality tests before making a job offer is potentially problematic. After an offer is made, hiring managers are at liberty to give the candidate a test or ask them to take a medical exam. But the offer of employment can only be rescinded if “the information reveals a person’s not qualified for the job, or poses a direct threat to safety,” says Jeanne Goldberg, a senior attorney advisor at the EEOC.
At this point, personality tests are not illegal and therefore will likely remain a part of the pre-employment process. The decision rests with job candidates whether to take the assessment of risk losing a job opportunity. Chris Kuczynski, Director of ADA/GINA Policy Division at EEOC, says for online applications, an applicant “could choose to answer the questions and then challenge them at some point” if they feel the questions were disability-related. Realistically, that isn’t easy to determine.
Another example of screening at the application stage is McDonald’s – their online application includes 25 questions ranging from very job-specific to general questions, such as:
- While you are on a break, a customer spills a large drink in a busy area of the restaurant. Cleaning the floors is the job of another team member, but he is taking a customer’s order. What would you do?
- I am sometimes unkind to others;
- I often lose my patience with others;
- I dislike having several things to do on the same day.
EEOC’s Goldberg doesn’t see how answering the non-job related questions would be deemed a disability-related inquiry, making it permissible. As pointed out by Deniz Ones, a University of Minnesota psychology professor who has studied such assessments, “employers can ask questions to see if your personality will do well in certain types of jobs. Any test worth its salt should not and will not disqualify individuals disproportionately who have mental disorders and emotional problems.”
The ACLU’s Brown disagrees, stating that standardized testing procedures are weeding devices and ones without meaning. He adds, “I generally have an aversion to any types of standardized tests promoting a panacea that doesn’t exist. Employers are always looking for the magic test.”
So, it seems the choice lies with job-seekers to choose whether or not they complete the questions and potentially work for companies who use such testing.