Denied a job or promotion after taking a personality test?
At a seminar I recently attended, Wendy F. Hensel, Associate Dean of Research and Professor of Law at Georgia State Law, reported that 76 percent of employers who have 100 or more employees are using personality tests as part of their application process. Applicants who have been denied a job or employees denied a promotion after taking such a test may have a claim under the American with Disabilities Act (ADA), according to federal courts. See Karraker v. Rent-A-Ctr., Inc., 411 F.3d 831 (7th Cir. 2005) (finding that the Minnesota Multiphasic Personality Inventory constituted an unlawful medical test under the ADA).
Employers use personality tests to measure “emotional intelligence,” a factor often cited as important to business success. However, according to Professor Hensel’s research, some personality tests were originally designed to detect autism. Moreover, individuals who have other mental illnesses, such as anxiety or depression, may score lower on these tests in certain areas.
Under the ADA, employers are prohibited from making disability related inquiries or medical exams prior to making an offer of employment. One of the legal questions courts have addressed under the ADA is whether personality tests are considered disability related inquiries or exams. To this, the court in Karraker answered yes, reasoning that the test “is designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability.” The reasoning of the Seventh Circuit in Karraker has been followed by other federal courts. See Kroll v. White Lake Ambulance Auth., 691 F.3d 809 (6th Cir. 2012). However, there have been surprisingly few reported decisions since Karraker, I speculate primarily because of the lack of awareness.
While the ADA prohibits medical inquiries or exams at the pre-offer stage, post-offer exams are permitted, but only if they are job-related and consistent with business necessity. In some instances, the results of personality tests may be job-related and consistent with business necessity. However, in many cases, such tests will not be job-related and consistent with business necessity. I predict we will see an uptick in litigation over these questions.