Should Employers Test Applicants’ Integrity? The EEOC Discusses “Integrity Testing”

Employers often associate a lack of integrity with counterproductive workplace behaviors, including theft and workplace violence. As a result, employers may be tempted to subject employees and applicants to so-called integrity tests. According to the U.S. Office of Personnel Management, “integrity testing” is a “specific type of personality test designed to assess an applicant’s tendency to be honest, trustworthy, and dependable.”

Problems can arise when an employer includes questions on an integrity test that may require an applicant to reveal personal information regarding his or her protected class or regarding an actual or perceived medical impairment. In those instances, the employer could be violating federal antidiscrimination laws by mandating such a test.

Recently, the U.S. Equal Employment Opportunity Commission (EEOC) was asked by a companythat “conducts integrity testing of employment applicants for third parties” to comment on the lawfulness of specific questions included in an integrity test. The test at issue asked applicants: (1) to describe their current use of methamphetamines; (2) to describe their current use of illegal, non-prescription drugs while at work; and (3) whether they would “take things from their employer without permission to get even [with the employer] if they felt that the employer (either the company or their boss) was treating them unfairly.” The EEOC issued an informal discussion letter in response to the inquiry.

Upon review, the EEOC first opined that because the test questions “do not ask applicants to disclose their arrest or conviction history,” they do not implicate liability under Title VII of the Civil Rights Act of 1964 related to discriminatory use of criminal history information. Title VII does not prohibit employers from asking applicants about current illegal drug use or the illegal use of non-prescription drugs at work. Nor does it preclude an employer from asking an applicant hypothetical questions about how the applicant might react in situations that may involve illegal activity.

However, the EEOC was careful to point out that an employer still may violate Title VII if the evidence indicates that an integrity test was “designed, intended, or used” to discriminate against certain applicants because of protected characteristics. Further, such a test can violate Title VII if the results are adjusted or altered to screen out certain applicants in protected categories.

The EEOC then indicated that the subject integrity test also would not violate the Americans with Disabilities Act (ADA). While pre-employment tests may not ask disability-related questions or questions that are likely to elicit information about a disability, the ADA does not protect individuals who currently are using drugs illegally. Therefore, an inquiry on that issue does not violate the statute. However, questions related to past drug addiction, use, or treatment, would, in fact, be viewed by the EEOC as violating the ADA’s prohibition on disability-related questions.

While an informal discussion letter from the EEOC does not constitute an official opinion, it indicates the position of the EEOC on a specific set of circumstances. Because the letter also sets forth certain circumstances in which the EEOC would hold differently, it is an important roadmap for employers that are inclined to use integrity testing in their application process.