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« Selection Humor | Main | SIOP 2006 Conference Program Online »
What Lawyers Think of Employment Testing
On February 14, 2006 by Jamie Madigan
Well, some lawyers, anyway. The American Bar Association (no small player in the land of law) recently ran an article called When a test turns into a trial: Things to keep in mind about psychological testing" on their website. In it they set out to talk about the benefits and pitfalls of pre-employment testing. The article starts out cheerfully enough:
Most companies are realizing there is great value in using psychological tests as part of the employee selection and promotion process. A 2000 survey by the American Management Association found that 33 percent of employers surveyed used psychological testing with their applicants and employees. ...So, why is knowing what is going on inside an employee or applicant's head so important? The answer is actually rather simple: money. Pre-employment testing weeds out poor matches whose personality likely would not mesh with the company culture.
So far so good. Unfortunately, the writers of this piece quickly get bogged down by an infatuation with the Minnesota Multiphasic Personality Inventory (MMPI), a test designed to detect mental illness and with use as a selection instrument only in special circumstances. Worse, the authors implicitly lump all personality and even all employment testing in with the MBTI. They wail and gnash their teeth over the dangers of using "psychological tests" like the MMPI with the implicit message that they're all legal landmines set to blow your company to bits. They don't really enter into any kind of discussion over cognitive ability tests, skills tests, or tests of normal personality (besides a brief nod to integrity testing).
So at this point, I'm pretty much considering the article critically flawed, hamstrung by a lack of knowledge about the nature of employment testing. It gets worse, though, in that the lawyers writing the piece don't even really seem to get the law around employment testing as it relates to discrimination:
...An employer who administers the wrong psychological test could face further legal action under varying federal and state laws. For instance, an employee could challenge a psychological test under Title VII of the Civil Rights Act. Title VII prohibits testing designed to, or that has a tendency to, discriminate based on race, gender, religion or national origin. Therefore, to the extent that a psychological test has a disproportionate adverse effect on minorities or women, the employer could face additional litigation under Title VII.While that's technically true --increased adverse impact increases your legal exposure-- what's omitted is any substantial discussion about validity or business necessity as an accepted defense against adverse impact. The only time this is hinted at is in a bulleted list of "things to consider" about employment testing. Specifically, they say "Make sure that the test is statistically valid, reliable and devoid of cultural and ethnic bias" and "Use tests that are job-related and of a business necessity." But then things are thrown back out of balance by a bullet point saying "Monitor the test results to ensure that there is not a disparate impact on women and minorities."
The fact is, though, that for some kinds of employment tests, adverse impact is an unfortunate fact of life. But the legal exposure is mediated by validity evidence and other efforts at ensuring the test's job relatedness. And ironically, the personality tests that the article spends so much time complaining about are the kind of tests that typically don't exhibit much adverse impact.
If someone were to evaluate testing on the basis of this article alone, they'd go away with a skewed and inappropriately negative view of the whole thing. I know effective lawyers always aim to minimize legal exposure, but this just doesn't seem right.
Existing comments:
Posted by Colin Kingsbury at February 14, 2006 1:00 PM:
Jamie,
Would you agree or disagree with what the article said in the context of psych tests like the MMPI and its derivatives? I think it's pretty clear that these create a different kind of exposure than something like an arithmetic test.
Best,
-cwk.
Posted by Jamie at February 14, 2006 1:50 PM:
No, not at all. I originally had a paragraph in this post talking about how I couldn't believe anyone would use the MMPI for most selection uses, and that everything the article had to say about that particular test was good advice. But I took that out because it seemed rambling. I mean, more so than usual.
What I take issue with, though, is lumping every other kind of tests (particularly tests that aren't personality tests) in with the MMPI.
Posted by Stephen at February 15, 2006 5:47 AM:
I think the lawyers who wrote the article are focusing on a single court case regarding the use of a personality test (the MMPI) and have generalized that to all psychological tests. It is rather self-serving that the lawyers then proclaim that hiring officials should consult a lawyer before proceeding with the use of ANY test.
There is little doubt that employers must now be very cautious when using personality tests for purposes of 'psychological screening' (euphemism for psychopathology). According to EEOC guidance, employers are prohibited from asking disability-related questions before making an offer of employment. In Karraker v. Rent-A-Center, the Seventh Circuit agreed with the plaintiffs that the MMPI constituted an impermissible medical exam because it was designed to reveal mental impairments. The court disregarded the company's claims that it did not use the test to reveal mental illness, but only to measure personality traits desired of its management employees. The court explained that the MMPI 'is designed, at least in part, to reveal mental illness' because applicants with such illnesses likely would be weeded out by their answers to certain questions, such as those that test feelings of depression. The court concluded that, because the test may reveal mental illness and 'has the effect of hurting the employment prospects of one with a mental disability, we think the MMPI is best categorized as a medical examination' and, thus, its use by Rent-A-Center in this context violated the ADA. The Karraker case has unfortunately brought all personality tests under greater scrutiny.
Posted by Bryan B at February 16, 2006 8:09 AM:
What surprised me the most, besides Jamie's point about employers defending tests with adverse impact, was the total lack of recognition that anything done to narrow down a list of candidates is technically a "test" under the Uniform Guidelines, the Teal decision, etc etc. I really wish folks would talk to an I/O Psychologist when writing these articles. A similarly incomplete article was recently published in one of SHRM's magazines.
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