For decades, American law has moved in the direction of eliminating subjective and sometimes discriminatory considerations in the hiring process and emphasizing objective and merit.-based factors. But many employers today seem oblivious to this trend.
A 2011 poll by The Society for Human Resource Management found that 18 percent of 495 randomly selected Human Resource professionals use some kind of personality test in the hiring or employee promotion process.
Generally, it is not unlawful for an employer to hire or promote employees on the basis of results of professionally developed ability tests provided that the tests are not designed to be used in a discriminatory fashion. However, it is essential the employer can demonstrate the tests are predictors of, or significantly related to, important elements of work behavior and successful job performance. The court will ask whether these tests are effective predictors of success or just another way to hire “people like us”?
According to ABC News, the Equal Employment Opportunity Commission is investigating the case of Vicky Sandy, who applied for a job as a cashier, bagger and stocker at a Kroger Supermarket in West Virginia. She took a 50-question personality test that was designed by Kronos, a workforce management solutions company, to predict whether she would be friendly and communicate well with customers.
Alas, Sandy, who is hearing- and speech-impaired, was not hired. She scored 40 percent on the test and was deemed less likely to listen, use correct language and correct enunciation.
Does it seem obvious that Sandy might have scored better if she were not hearing- and speech-impaired? And can a personality test really assess whether Sandy would be 40 percent worse at bagging than a non-hearing impaired applicant who scored 100 percent on the test?
Are these personality tests really any better than a hiring officer who decides not to hire a highly-qualified applicant because he didn’t feel that she was as perky or enthusiastic as a recent law school graduate?
Personally, when I graduated from law school, I interviewed at a big firm where I endured six interviews on the same day by six male partners who each asked me about my aptitude for softball. The fact that I wear glasses and frequently bump into things may be a clue to my answer. I was not hired. (I hear they got a good first base player though.)
Discrimination is far more subtle today than it has ever been. One cannot help but wonder about whether personality tests really do predict future job success? Or do they serve as a useful tool to justify hiring discrimination?
I’ve encountered baggers at my supermarket who appear to suffer from significant mental and/or physical disability and they do just fine. Although admittedly they don’t all have perfect diction, I get what they’re saying, especially if they’re smiling when they hand me my groceries.
Remember the psychological test that claimed to reveal whether an injured plaintiff was really suffering? The so-called Fake Bad Scale (FBS), which scores suspected malingerers via a series of questions, was widely used by expert-witness neuropsychologists for insurance companies. FBS inventor Dr. Paul Lees-Haley, who garnered 95% of his income from appearing as an expert defense witness, chose its 43 questions from the more than 500 in the oft-used Minnesota Multiphasic Personality inventory (MMPI) test.
A retired University of Minnesota psychologist, Dr. James Butcher, said of the Fake Bad Scale “virtually everyone is a malingerer according to this scale … This is great for insurance companies, but not great for people.”
A Florida circuit judge in 2007 dismissed the value of the FBS in uncovering fakers: “The Court concludes that the FBS is very subjective and dependent on the interpretation of the person using or interpreting it … There is no definitive scoring because the scoring has to be adjusted up and down based on the circumstances and there is a high degree of probability for false positives.”
After the Florida judge dismissed the FBS evidence, the jury awarded the Plaintiff $1.4 million.
Time will tell how a future judge or jury – if it gets to them- evaluates the usefulness of the personality test administered by Kroger in Ms. Sandin’s case.
But for employers who are adverse to risk, it might be good idea to wait and see what happens.