Author: Crystal Spraggins
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.
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:
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?
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.