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Keith Srakocic  /  AP
Personality tests are being used by companies inundated with resumes in this tough job market to prune the endless job applications they get. But they could be discriminatory.
By Eve Tahmincioglu
msnbc.com contributor
updated 8/15/2011 9:29:46 AM ET 2011-08-15T13:29:46

When applicants apply for a job online these days, they are increasingly being asked to take personality tests even before they exchange an e-mail or have a phone interview with a hiring manager.

Such tests are being used by companies inundated with resumes in this tough job market as a way to prune the endless job applications they get via job boards and their own sites. But these assessments may also be used to weed out job seekers with mental disabilities, and that’s a legal no-no.

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Here’s a sampling of questions from an online personality test that CVS Caremark, the pharmacy chain, was giving to potential candidates. The questions send up legal red flags. The applicants had to answer whether they agreed or disagreed with the statements.

  • People do a lot of things that make you angry.
  • There’s no use having close friends; they always let you down.
  • Many people cannot be trusted.
  • You are unsure of what to say when you meet someone.

After hearing from several applicants, the Rhode Island ACLU filed a complaint with the state Commission for Human Rights, which found “probable cause” that the CVS test was in fact discriminatory, said Steven Brown, the organization’s executive director. Last month, the company settled the case and agreed to remove the problematic questions. (CVS did not respond to a request for comment.)

The CVS case could be the tip of an iceberg. The growing use of such tests so early in the hiring process is relatively uncharted ground, and could hurt people with mental disorders, depending on the questions asked, legal and human resource experts note.

“There’s an increase in the use of these tests to weed people out because of the Internet,” said Gavin Appleby, an attorney with Littler Mendelson, one of the nation’s largest employment and labor law firms representing management.

Before the Internet, an employer might put an ad in the paper and get 30 people applying. Today a position posted on a job board could get 300 or even 3,000 responses, Appleby said.

“A number of employers are using tests that may be considered medical examinations under the Americans with Disabilities Act — tests that create substantial adverse impact against protected categories of persons or tests that are not properly validated,” he said. “Unfortunately, many employers do not consider whether the tests they use are legally defensible."

Personality tests are “growing like wildfire,” said Josh Bersin, president and CEO of Bersin & Associates, an Oakland, Calif., research firm. The employment assessment market overall is worth about $2 billion, up 15 percent from last year, he said.

About one-third of employers use testing for hiring and promotions, according to Development Dimensions International, a talent management firm. A Society for Human Resources Managements poll in 2005, the most recent data available, found that 23 percent of surveyed organizations used "online, minimum qualifications screening questionnaires, questions that may knock candidates out of the recruiting process.”

Bersin estimated that this kind of pre-hire testing has been growing by as much as 20 percent annually in the past few years, driven in part by high unemployment. Industries that are flooded with resumes such as retail, food service and hospitality are among the ones that use such tests most often, he said.

While such tests have been around for years, how they impact job seekers with disabilities, in particular, is a “gray area,” he noted. “A lot of work has been done over the years on how personality tests impact gender, race or age bias, but I don’t know if anyone has done enough research yet on mental disabilities.”

Bersin, whose son has attention-deficient disorder, said “the medical community is starting to redefine what these diagnoses are, and the laws may not have caught up.”

What makes personality tests given before a job offer so different and potentially more problematic is the fact that employers are legally more restricted on what they can ask before offering a position to a candidate.

Once an offer is made, however, a hiring manager can give the job candidate a test with disability-related questions or ask them to take a medical exam, said Jeanne Goldberg, a senior attorney advisor at the Equal Employment Opportunity Commission.

However, a job offer can only be rescinded "if the information reveals a person’s not qualified for the job, or poses a direct threat to safety,” she said.

Clearly, personality tests as a whole are not illegal and will likely remain part of the pre-employment landscape.

No matter how much job seekers dislike such assessments, they often will have to relent and take the tests or risk losing a job opportunity.

As for online applications, an applicant “could choose to answer the questions and then challenge them at some point” if indeed they feel the questions were disability related, said Chris Kuczynski, director of the ADA/GINA Policy Division at the Equal Employment Opportunity Commission.

Unfortunately, figuring that out isn’t easy.

For example, the online application for McDonald’s includes 35 questions for job seekers, and they range from the very job-specific to more general questions.

Here’s a sampling:

  • While you are on break, a customer spills a large drink in a busy area of the restaurant. Cleaning the floors is the job of another team member, but he is taking a customer's order. What would you do?
  • I am sometimes unkind to others.
  • I often lose my patience with others.
  • I dislike having several things to do on the same day.

The EEOC’s Goldberg said she didn’t see how answering the non-job related question would be deemed disability-related inquiries, which means they are permissible.

Indeed, employers can ask questions to see if your personality will do well in certain types of jobs, said Deniz Ones, a professor of psychology at the University of Minnesota who has studied such assessments.

“Any test worth its salt, it should not and will not disqualify individuals disproportionately who have mental disorders and emotional problems,” she said.

The ACLU’s Brown disagreed.

“A lot of these standardized testing procedures are weeding devices and ones without any meaning,” he said. “I generally have an aversion to any types of standardized tests promoting a panacea that doesn’t exist. Employers are always looking for the magic test.”

In the end, he said, people have to decide if these are the types of companies they want to work for.

Eve Tahmincioglu writes the weekly "Your Career" column for msnbc.com and chronicles workplace issues in her blog, CareerDiva.net.

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