Author: Crystal Spraggins
Are behavioral assessments legal?

When you read in the news that a large employer like Target (Soroka v. Dayton Hudson Corp. d/b/a Target Stores) or Rent-A-Center (Karraker v. Rent-A-Center Inc.) has been sued for using personality testing in their hiring processes, you have to wonder what went wrong.

You also have to wonder, are these things legal? Because if huge employers with massive legal departments and armies of HR professionals can get in hot water, something must be off.

Well, something was off in those cases. Let’s take a closer look.

 

Legal Challenges to Behavioral Assessments

The legality of behavioral assessments during the hiring process is most often challenged by those who were eliminated because of the test results.

For example, in Karraker v. Rent-A-Center Inc., brothers Steven, Michael, and Christopher Karraker filed suit when they were refused promotions into management. At the time, Rent-A-Center required anyone seeking a management position to take the Minnesota Multiphasic Personality Inventory (“MMPI”), and the brothers’ scores eliminated them from consideration. Whew! Rent-A-Center dodged a bullet (or three) there, huh?

Well, no. The problem is that the MMPI is used to detect mental disorders. For this reason, the Karraker brothers claimed the test was an unlawful pre-employment medical examination under the Americans with Disabilities Act (“ADA”), and the appellate court agreed.

The plaintiffs in Soroka v. Dayton Hudson Corp claimed their pre-employment tests were an invasion of privacy. Plaintiffs were required to respond to such statements as:

  • I believe my sins are unpardonable.
  • I am very attracted to members of my own sex.
  • Evil spirits possess me sometimes.
  • I have no difficulty starting or holding my bowel movement.
  • I have never been in trouble because of my sexual behavior.
  • I feel sure there is only one true religion.

Target’s legal burden was to show there was a valid reason for requiring prospective employees to answer such questions. Instead, they settled the case.

In addition to ADA violations and invasion of privacy, behavioral assessments can also violate the Civil Rights Act of 1964 (Title VII) if the tests are found to discriminate against members of a protected class and again, the employer can’t present a compelling reason why a particular test with particular questions is being administered.

But none of this means behavioral assessments are illegal. They aren’t illegal at all. What steps then, can an employer take to avoid the troubles of Target, Rent-A-Center, and countless other companies?

 

Making Assessments Work

  • Keep it relevant: As the Target case showed, employers shouldn’t ask questions that aren’t related to getting the work done.
  • Know your test: As the Rent-A-Center case showed, not all tests are suited for pre-employment assessments. Tests designed to be used by healthcare personnel to detect mental disorders are particularly unsuited, because the ADA prohibits the use of medical tests before a job offer is made. Note that the test does not have to be analyzed by a healthcare worker to be deemed in violation.
  • Know that the entire test doesn’t have to be a problem to cause you a problem. In the Target case, not all the questions were deemed to invade employee privacy, but Target found itself on the wrong end of a lawsuit anyway.
  • Don’t make the test results the sole basis of your hiring decision.
  • Consider using assessments for team building as well as screening.
  • Stick to your guns. A test not appropriate for one situation could be very appropriate for another. In Miller v. City of Springfieldthe court held that the City of Springfield did not discriminate against a female applicant who was denied a job as a police officer after scoring above-normal for depression on the MMPI. The court documents state: “We point out that Miller is not disabled under the Act. She therefore cannot base a claim of discrimination on this regulation because she was not screened out on the basis of any disability. In any event, we easily conclude that appropriate psychological screening is job-related and consistent with business necessity where the selection of individuals to train for the position of police officer is concerned.” (Emphasis ours).

Summary

Behavioral assessments are perfectly legal, although rife with potential hot spots for unprepared employers. However, when used appropriately, behavioral assessments contribute to more effective employee selection and a more productive workforce.