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Personality Tests and Employment Discrimination, Part 2

Earlier this week, we covered employers' use of personality tests to inform hiring decisions. While experts disagree on the extent to which personality tests actually help determine an candidate's potential, nearly 20 percent of workplaces reported using them.

This post will look at the allegations in a recent disability discrimination complaint and discuss the circumstances under which a personality test can become unlawful.

The plaintiff in the most recent personality test case is a speech and hearing-impaired woman. She applied for a job as a grocery store cashier and bagger in 2007 but did not get an offer after she received a low score on a personality test. The test purported to measure customer service skills involving listening and communication-the exact areas affected by the woman's impairment. Her test results indicated that the woman was likely to face communication challenges involving listening and comprehension. She now claims that the test discriminated against her by using her disability as a reason to reject her application.

Employment practices can be discriminatory in two ways. The first and more obvious way involves deliberate decisions to treat certain groups of people differently. The second, however, can occur if an employer does not mean to discriminate but a particular practice still disproportionately impacts a protected group.

Employers could potentially use personality tests in either way. An employer could decide to only impose the test on candidates of a particular race or with a specific impairment in order to eliminate them from consideration. Alternatively, an employer could use the test with the best of intentions and systematically choose not to hire people solely based on the test's evaluation of a protected characteristic.

Although these concepts present complex and difficult questions in employment discrimination cases, employment laws exist precisely to prevent this kind of conduct. In one case, an employer paid $550,000 to a group of African-American, Asian, and Hispanic candidates who received low scores on one of its tests.

From a big picture perspective, personality test cases are relatively rare. Out of the EEOC's 100,000 discrimination claims last year, only 164 involved tests. This might be partially because rejected candidates may not bother to ask for test scores.

Any employee or job-seeker who suspects that unlawful discrimination might have played a role in an employment decision should consult with an experienced California employment lawyer.

Source: ABC News, "Woman Sues Over Personality Test Job Rejection," Abby Ellin, Oct. 1, 2012

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