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.
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:
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.
Employers wishing to incorporate pre-hire personality testing will need to assess and answer the following practical questions when implementing personality tests:
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.
Anna Saraie is a senior associate in Alston & Bird’s labor and employment practice.
Martha Doty is counsel in Alston & Bird’s labor and employment practice.
