Legality of Testing

Despite the many benefits which assessments may provide an employer, the use of assessments raises many significant issues that an employer should be cognizant of when deciding to utilize assessments with job applicants.

Constitutional Claims
    It is well settled that the United States Constitution has no applicability to a private employer. See, e.g., Myron v. Consolidated Rail Corp., 752 F.2d 50, 54 (2d Cir. 1985). 2 However, unlike the federal constitution, state constitutions are a possible avenue available to job applicants of private employers challenging the legality of personality and aptitude testing on right to privacy grounds.

    While the New York State Constitution has no provision, at least 10 states have right to privacy protections in their state constitutions. Three Courts in some of these 10 states have provided broader privacy protections than U. S. Supreme Court decisions, including applicability against private employers. California is the most prominent example. See e.g., Kinsey v. Macur, 107 Cal.App.3d 265, 165 Cal.Rptr. 608,612 (Ct. App. 1980) (no state action necessary to bring cause of action for violation of right to privacy).

    In a landmark ruling on the legality of psychological tests (for clinical diagnosis of abnormal behavior problems, i.e., the MMPI), the California Court of Appeals held that certain portions of a personality test administered to job applicants for security guard positions violated the state constitutional right to privacy and state anti-discrimination laws. Soroka v. Dayton Hudson, 18 Cal.App.4th 1200, 1 Cal.Rptr.2d 77, 86 (Ct. App. 1991), review dismissed, 24 Cal. Rptr. 2d 587 (1993); see generally Employers Beginning to Abandon Psychological Tests, Speaker Says, Daily Lab. Rep. (BNA) No. 151, at A-12-13 (Aug. 9, 1993) (reporting that the parties ultimately settled the case out of court for $2 million).

    Certain questions, taken from test items on the MMPI, asked applicants about their religious preferences and sexual orientation. Id. at 79-80. The court stated that the employer was required to demonstrate a “compelling interest” for using the test and concluded that the questions inquiring into areas of sexual and religious nature were overly intrusive and did not relate to the job. Id. at 85-86. See also Cort v. Bristol-Myers, Co., 431 N.E.2d 908, 912 (Mass. 1982) (employees failed to state claim for violation of right of privacy where plaintiffs did not respond to “intrusive” questions).

    The Achiever, the Scoreboard, the Guardian and the Performer, are constructed and validated to be job-related assessments, and do not contain psychologically-oriented questions to establish abnormal behavior problems and their degree. The questions on these assessments are solely job-related and responses are directly aligned to job performance.
State Statues
    Another ground for disgruntled job applicants to challenge an employer’s use of personality assessments (tests) are fair employment practice statutes. These statutes, like their federal counterparts (e.g., Title VII), generally prohibit employment discrimination on the basis of race, national origin, sex, religion, age or handicap. These statutes are in accordance with Title VII in that the use of employment assessments (tests) such as personality or aptitude exams, is not an unlawful employment practice unless it is discriminatory. See, e.g., N.Y. Exec. Law §296.

    Other state statutes have also attempted to regulate the legality of employment assessments (tests). Rather than directly regulating aptitude or personality testing, these statutes have usually attempted to prohibit polygraph exams. Moreover, some states have enacted statutes to prohibit the mandatory use of honesty tests. See, e.g., Minn. Stat. Ann. §181.75 (statute prevents use of inter alia, voice stress analysis or tests measuring strictly honesty).
Common Law Claims
    There also exist several state common law causes of action that are potentially available to job applicants challenging an employer’s personality testing, including: invasion of privacy, defamation, negligence and intentional infliction of emotional distress.

    Common law invasion of privacy is a potential avenue against an employer’s use of personality testing which would likely result from uses of psychological, clinically-oriented testing traditionally used for abnormal behavior analysis and in many cases, as a prelude to treatment, (i.e., the MMPI) as opposed to standard job-related assessments. The right of privacy may be invaded by four causes of action: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of name or likeness; (3) unreasonable publicity of private facts; and (4) publicity that unreasonably places a person in a false light before the public. Restatement (Second) of Torts §652A(2). Of these causes of action, the ones most likely to arise in the employment context are intrusion and public disclosure of private facts. 4
Title VII Liability
    Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate on the basis of race, color, religion, sex or national origin in employment decisions. 42 USC §2000e-2(h). Title VII does not, therefore, prohibit personality or aptitude testing. The statute is implicated only when: (1) an employer uses tests to intentionally discriminate against minorities; or (2) the tests have an adverse impact on minorities and are not job related, as in the case of psychological tests used for abnormal behavior analysis. 5
Disparate Treatment
    No case has yet found that an employer’s use of personality assessments (tests) constituted disparate treatment of protected groups. 6 However, if a test is used to intentionally screen out one or more members of such protected groups, Title VII is clearly implicated. For example, in Reynolds v. State of Arizona, No. 91-16189, 1993 WL 133831 (9th Cir. Apr. 28, 1993), the plaintiff, a female, reapplied for a position as a patrol officer after previously having left her job because her infant daughter required her care. The defendant-employer advised plaintiff that her reemployment was contingent on her successful completion, inter alia, of a psychological examination (i.e., MMPI). 1993 WL 133831, at *1. Plaintiff was not rehired and challenged the decision, claiming, in part, that the defendant’s use of various personality tests was “inherently biased against women.” Id. at *3.

    The court, however, rejected plaintiff’s claim because she failed to present statistical evidence demonstrating that the psychological evaluations even had a disparate impact on female applicants as a group. To the contrary, in the two-year period prior to when plaintiff applied to be rehired, “approximately 34 percent of male applicants for employment were disqualified due to their psychological evaluation, while only 13 percent of female applicants were disqualified on this ground.” Id. moreover, in the reemployment context, only two applicants were disqualified by the psychological evaluation: plaintiff and a male applicant. Id. Accordingly, because plaintiff failed to demonstrate that the test was used to intentionally screen out women from securing positions with the department, plaintiff’s Title VII claim failed. 7

    In this case, psychological tests such as the MMPI, etc., used for diagnosis and treatment of abnormal behavioral patterns are considered pertinent to the job of a patrol officer, fire fighters, police officers, airline pilots, train engineers and other job categories specially designated by the federal government as job categories where the performance of said job could endanger public safety. As a result of potential for endangering public safety, these specially classified job categories bear the requirement for psychological testing, such as the e MMPI, to establish whether or not an abnormal behavioral pattern(s) does exist within an individual.
Disparate Impact
    A handful of cases have addressed whether or not the use of personality tests has had an adverse impact on protected individuals. See Reynolds, supra; Colbert v. H-K Corp., 4 Fair Empl. Prac. Cas. (BNA) 529, 530 (N.D. Ga. 1971) (intelligence and personality tests upheld as reasonably related to job performance) 8

    Generally, adverse impact claims have risen in the context of ability and aptitude tests. For example, the Seventh Circuit recently held that the employer’s aptitude test had a disparate impact on Hispanic job applicants because there was no significant correlation between an applicant’s test score and his or her ability to perform the duties of an entry-level manager. Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 665-669 (7th Cir. 1996). Moreover, the plaintiff’s expert testified that the aptitude tests could “predict a person’s job performance only 3 percent better than chance alone.” Id. at 665.

    Although there are different methods by which a job applicant or employee may show adverse impact, the most common approach is the “applicants-statistics” approach, which compares the percentage of minority applicants successfully passing a personality or aptitude test to the percentage of majority applicants successfully passing the tests.

    In order to establish a prima facie case, the employee must establish adverse impact with a significant sample of minority applicants. If the sample size is small, the court may reject the statistic because a slight shift of a few scores would greatly alter the overall disparity. 9 The court may accept a small sample if the complaining employee has other evidence of discrimination such as a history of minority exclusion. See, e.g., Rogers v. Int’l Paper Co., 510 F.2d 1340, 1356 (8th Cir.), rev’d on other grounds, 423 U.S. 809 (1975) (small minority sample enough to establish adverse impact when evidence of past discrimination shown).

    Along with an adequate sample size, the complaining employee must also establish that the adverse impact is “substantial.” Using the applicant-statistic approach, for example, the court examines the ratio of the majority pass rate to the minority pass rate. See 29 C.F.R. § 1607, The Uniform Guidelines of Selection Procedure (the “Guidelines”). The Guidelines indicate that to establish an adverse impact claim, the minority pass rate must be less than 80 0ercent of the majority pass rate. 29 C.F.R. § 1607.4(D) (“[a] selection rate for any race, sex, or ethnic group which is less than four-fifths … (or 80 percent) of the rate for the group with the highest rate will generally be regarded by the federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded as evidence of adverse impact”).

    Once an employee establishes a prima facie case of disparate impact under Title VII, the employer must show that the test is job-related. See, e.g., Graffam v. Scott Paper Co., 870 F. Supp. 389, 399-403 (D.Me. 1994) (selection criteria chosen to implement reduction in force were job related, where psychologist testified that all criteria used except that of specific technical skills described job behaviors required in managerial and technical jobs), aff’d, 60F.3d 809 (1st Cir. 1995). In order to meet the job-relatedness requirement, the employer must show the scored test validity relates to the job at issue. There are three recognized methods by which an employer may show validation: (1) criterion validation; (2) content validation; and (3) construct validation. 29 C.F.R. § 1607.5 (A).

    Criterion validation compares success on the test with success on critical or important job duties. Id. According to the Guidelines, a criterion validation study is “technically feasible” when: (1) a substantial number of individuals are included in the validation study; (2) a range of scores on the selection procedure and job performance measures can be obtained that is sufficiently representative of the normally expected ranges; and (3) reliable and valid measures of job performance are available. See 29 C.F.R. § 1607.5. If these three conditions are present, an employer is more likely to obtain a statistically significant result.

    Employers can use content validation when the test closely approximates the job; for example, a typing exam for a typist position. See 29 C.F.R. § 1607.14 (C). This form of validation is often utilized for aptitude testing, but is not applicable to personality testing because such tests do not measure skills or job knowledge.

    Construct validation necessitates a relationship between satisfactory job performance and a specific trait, such as human relations skills required to perform effectively as a customer service representative, as well as accurate measurement of the trait by the test. See 29 C.F.R. § 1607.14(D). This method of validation is the most appropriate for personality testing, because it focuses on the link between the particular trait and projected performance on the job.
    (1) In response to the difficulty in obtaining accurate applicant background information, many employers in the past used the polygraph to test applicants. Nevertheless, effective use of the polygraph has been virtually eliminated by the passage in 1988 of the federal Employee Polygraph Protection Act, 29 USC §§ 2001-2009.

    (2) The United States Supreme Court, state legislatures and courts across the country have not extended the right of privacy found in the Constitution to prohibit personality testing by public employers. However, courts have held that questions in personality and aptitude tests cannot be unreasonably intrusive and must be related to the job. See, e.g., McKenna v. Fargo, 451 F. Supp. 1355, 1362-64 (D.N.J. 1978), aff’d. 601 F.2d.575 (3d Cir. 1979) (court upheld the city’s use, inter alia, of the MMPI because the test used, and the accompanying procedures, while burdening the applicant’s right to privacy, was outweighed by the city’s interest in screening out applicants, to become firefighters, who could not withstand the pressures of the job).

    (3) Alaska Const. Art,I, § 22; Ariz. Const. Art. II, §8; Cal. Const. Art. I; Fla. Const. Art. I, §23; Haw. Const. Art. I, §6; La. Const. Art. I, §5; Mont. Const. art. II, §10; S.C. Const. art. I, §7. Several states have statutes that provide a right to privacy. See, e.g., Mass. Gen. Laws Ann. Ch. 214, §1B (“[a] person shall have a right against unreasonable, substantial or serious interference with his privacy”).

    (4) The other common law claims which an applicant may assert against an employer who administers aptitude and/or personality tests—defamation, intentional infliction of emotional distress and negligence—are difficult theories on which to predicate a successful lawsuit. See, e.g., Pinger v. Behavioral Science Ctr., 556 N.E.2d 202, 212 (Ohio Ct. Appl. 1988) (summary judgment upheld for defencent employer administering MMPI against claims of defamation and negligence because employee executed a valid written consent agreement relieving organization from liability); Gibson v. Hummel, 688 S.W.2d 4, 8 (Mo. Ct. App. 1985) (employer not liable for intentional infliction of emotional distress for requiring employee to take polygraph exam and terminating the employee based on exam results). But see Armstrong v. Morgan, 454 S.W.2d 45, 47 (Tex. Civ. App. 1976) (physician’s inaccurate report to employer relating to employee’s physical examination supported claim for negligence).

    (5) The Civil Rights Act of 1991 added an amendment to Title VII explicitly prohibiting the discriminatory use of test scores. The statute states that: “It shall be an unlawful employment practice … to adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment related tests on the basis of race, color, religion, sex or national origin.” 42 USC 2000e-2(1).

    (6) A prima facie case of intentional discrimination is established when a member of a protected class proves he or she applied and is minimally qualified for an available job but is rejected, the position remains open, and the employer continues to seek similarly-qualified applicants. The employer then bears the burden of production to articulate some legitimate, nondiscriminatory reason for the plaintiff’s rejection. If the employer demonstrates a legitimate, nondiscriminatory reason, the plaintiff must prove that the stated reason is a pretext. Pretext is proven by showing a discriminatory motive more likely motivated the employer, or by showing the employer’s proffered explanation is unworthy of belief. Merely showing such pretext, however, does not entitle the plaintiff to judgment, rather the court must evaluate the plaintiff’s case in its entirety to determine whether or not the plaintiff has sustained his or her ultimate burden of persuasion in proving that the employer has intentionally discriminated. See generally St. Mary’s Honor Ctr. V. Hicks, 113 S. Ct. 2742, 2749 (1993); Fisher v. Vassar College, 114F.3d 1332, 1334-37 (2d Cir. 1997).

    (7) See also Equal Employment Opportunity Comm’n. v. Atlas Paper Box Co., 680 F. Supp. 1184, 1188 (E.D. Tenn. 1987), rev’d 868F.2d 1487 (6th Cir. 1989) (reversed and remanded for further findings as to whether employer’s use of Wonderlic Personnel Test created a policy of racial discrimination or discriminatory intent sufficient to support a claim of disparate treatment), cert. denied, 493 U.S. 814 (1989).

    (8) In order to establish a prima facie disparate impact claim under Title VII, the employee must show that he or she is a member of a protected group, and that the employer’s test had a disproportionate impact upon his or her group. The employer then bears the burden of demonstrating that the test is job-related and consistent with business necessity. If the employer shows job relatedness and business necessity, the burden shifts back to the employee to show the test is a pretext for discrimination. This is done by demonstrating that an employer refused to adopt an alternative selection procedure with a less discriminatory impact. See generally Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1979).

    (9) The Second Circuit recently reaffirmed this principle in a discrimination case brought by a college faculty member by noting that “the small[er] the sample [size of the group subjected to statistical analysis], the greater the likelihood that an observed pattern is attributable to other factors and accordingly the less persuasive the inference of discrimination [is] to be drawn from it.” Pollis v. The New School for Social Research, __ F.3d __. No. 96-9361, 1997 WL 736105, at *6(2d Cir. Nov. 25, 1997).
Opinion Letter