Alston & Bird’s Anna Saraie and Martha Doty analyze pre-hire personality testing, including the legal and practical considerations for employers incorporating such testing into their application processes.

Whether employees are a good personality fit within the team, department, and overall culture of a workplace is an important factor in a company’s success.

Employers increasingly are requiring applicants to take personality tests as part of the recruiting process. The integration of artificial intelligence tools into personality assessments has both revitalized employer interest in using these tests for recruiting and complicated the legal landscape for their use.

But before using preemployment personality tests, employers should understand the legal and practical considerations of implementing such tests.

Legal Considerations

Employers should be aware that various laws may be implicated by using personality testing at the preemployment stage.

For starters, any preemployment testing must comply with federal anti-discrimination laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. These laws permit certain preemployment testing if it meets statutory requirements and is nondiscriminatory.

Employee selection guidelines codified in 29 C.F.R. 1607.1 in 1978 intended to assist employers in complying with the requirements of federal law that prohibit employers from discriminating against employees based on race, color, religion, sex, and national origin.

Employers aren’t strictly bound, but courts weigh the guidelines in assessing the validity of various employment tests. Any validation of preemployment personality testing should be conducted in line with these guidelines.

The Equal Employment Opportunity Commission issued two pieces of technical guidance in the past two years that build on the guidance to specifically address the use of artificial intelligence in hiring tools.

On May 18, 2023, the EEOC issued guidance on the effect of software, algorithms, and artificial intelligence used in employment selection procedures under Title VII of the Civil Rights Act. And on May 12, 2022, the EEOC issued guidance on how an employer’s use of software that relies on algorithmic decision-making may violate requirements under Title I of the Americans with Disabilities Act.

The EEOC advises employers using pre-employment testing software with AI or other algorithmic decision-making tools to ensure that they know how the software was developed, as well as evaluation of whether such selection tools causes a substantially lower selection rate for individuals with a characteristic protected by Title VII.

The EEOC advises employers to consider asking the following questions about a pretesting tool when considering ADA requirements:

• If the tool requires applicants or employees to engage a user interface, did the vendor make the interface accessible to as many individuals with disabilities as possible?
• Are the materials presented to job applicants or employees in alternative formats? If so, which formats?
• Are there any kinds of disabilities for which the vendor won’t be able to provide accessible formats? If so, the employer may have to provide them.
• Did the vendor attempt to determine whether the use of the algorithm disadvantages individuals with disabilities?

In addition to federal laws, employers should be cognizant of applicable state and local laws, including privacy and bias concerns. For example, New York City Local Law 144, which took effect on Jan. 1, 2023, prohibits employers and employment agencies from using an automated employment decision tool in New York City unless they ensure a bias audit was done and provide required notices.

Personality tests may be subject to this law, and other state and local governments will likely follow suit and adopt similar regulations.

Practical Considerations

Employers wishing to incorporate pre-hire personality testing will need to assess and answer the following practical questions when implementing personality tests:

• What are the company’s goals in incorporating the testing in its recruiting processes?
• What personality traits will the company be testing for? Why are these traits important? Is there an alternative method for evaluating these traits?
• Which applicants will be required to take the test? Will the company require all applicants to submit, or will the company require tests for only certain positions? Will the company require tests for applicants regardless of where they’re located?
• Will the test use AI tools?
• At what point in the recruitment process will applicants take the test?
• Is the company concerned with recruiting talent? Could requiring pre-hire personality tests discourage candidates from applying?
• Does the company already require other pre-hiring tests, such as drug testing or background checks? If so, would adding the additional test discourage candidates from applying?
• Which personality test will the company use? If so, which format will be used; how will this test measure the personality traits that are important to the company; and has this test been properly validated?
• How will the test results be used by hiring personnel?
• What steps will the company take to ensure tests continue to comply with applicable law, including ensuring that the tests, over time, don’t disparately affect a protected group?

Outside Vendors

Employers may use outside vendors to implement pre-employment personality testing. But employers should be vigilant in asking and confirming that any testing complies with the applicable laws, because the EEOC has clearly indicated that employers can be liable for violations of federal anti-discrimination laws even if an outside vendor developed the software.

At a minimum, employers must ensure that the personality testing has been properly validated. Further, employers should ask the vendors to provide the actual test questions and review these questions with employment counsel to ensure the questions don’t infringe on an employee’s rights under applicable anti-discrimination and privacy laws.

Finally, employers should work with the vendor to monitor and assess test results while the pre-employment personality tests are required. This will ensure the testing doesn’t disparately affect a protected class.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Reproduced with permission. Published February 12, 2024. Copyright 2024 Bloomberg Industry Group 800-372-1033. For further use please visit https://www.bloombergindustry.com/copyright-and-usage-guidelines-copyright/

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