Personality Testing and the ADA

I wanted to wait until the furor (well, within I/O psychology circles) over the Wall St. Journal article on personality testing died down a bit before commenting on it. Articles in the popular press on HR and industrial psychology topics are always have a bit of “they sky is falling!” quality, and this one is no different. The article outlines questions from the EEOC and some plaintiffs as to whether common personality tests discriminate against those with mental illnesses such as depression, bi-polar disorder, etc.

Here’s the most important part of the article:

In general, though, “if a person’s results are affected by the fact that they have an impairment and the results are used to exclude the person from a job, the employer needs to defend their use of the test even if the test was lawful and administered correctly,” says Christopher Kuczynski, EEOC acting associate legal counsel.

Guess what? That is EXACTLY the current law having to do with discrimination by race, gender, and age when using pre-employment tests. If you use a test that leads to protected groups scoring differently you need to show that the test is job related and there isn’t a better way to select on that trait or ability. So, why the big deal?

The test publishers hate this kind of scrutiny because it brings individual items out into the public. It is hard to make the case that your test is “fair” when some of the items look strange out of context. Target learned this the hard way. Also, no one likes to explain science to the public. Doing so just makes the current hole you are standing in deeper.

I think the EEOC is fishing here. They’re a little bored in this arena since class action pre-employment testing cases have pretty much gone away since Wards Cove. They tried to bully Sears when no one was stepping forward to sue, but only got a $100,000 settlement (far less than the cost of going to class action trial). I also think they will lose (or get small settlements to make them go away) in these disability cases.

The difficulty the EEOC will face is that the medications for the illnesses involved are effective. As a result, it’s likely that the test scores for those who take them will be similar to the rest of the population. Drug treatment for depression, bipolar disorder, ADHD, etc are so prevalent that I have to believe that the passing rates for this group on personality tests is about the same as the general the population.

Where employers will get in trouble is when they do not have documentation showing that the particular personality construct they are measuring is a critical part of the job and that the test predicts it. Many companies take validity generalization for granted without doing the required job analysis work. And, as always, employers really need to look at the test items they are using before implementing any instrument and determine if the risk of using the is worth the potential value.

If the EEOC is serious about pursuing these kinds of cases, employers will need to rethink their job analysis and posting processes. For instance, most job postings list the physical demands of a job. I can see a section on the mental demands of the job (Must be able to work under mentally stressful conditions for long periods of time; Must be able to maintain focus throughout the day; etc).

The employment rights of those with mental illnesses should be protected. We have come a long way in recognizing, treating, and de-stigmatizing these conditions. However, suing over legitimate pre-employment tests is a solution looking for a problem.

For more information on pre-employment test validation, please contact Warren Bobrow at 310 670-4175.

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