QUESTION:        If we decided to implement standardized personality tests across our institution, would this raise any legal concerns?  Does the EEOC have any guidance on this?

ANSWER:            Personality tests raise significant legal concerns and should be approached cautiously.  Although it is becoming increasingly common to see personality testing as a standardized part of job screening, the federal Equal Employment Opportunity Commission (“EEOC”) has raised concerns that such testing can have unlawful discriminatory impacts.  For example, the EEOC recently reached an agreement with CVS following a probe over whether the drugstore chain’s use of personality tests had a negative impact on jobseekers based on their race and/or national origin.  (See here for the EEOC press release.)

The exact nature and extent of the legal risk vary depending on how the test is designed and administered.  As a general rule, any employer who uses a personality test (or similar selection procedure) should be prepared to justify its use under close scrutiny.  Even if a test is administered without any intent to discriminate, it might still have an unlawfully disproportionate impact on a protected class of people (for example, disproportionately excluding people based on race, religion, sex, or other protected factors).  Employers must have strong evidence showing that the selection procedures/tests are job-related and consistent with business necessity and should be confident that their evidence can persuade skeptical regulators.

Unless you have well-documented empirical evidence to defend the use (and necessity) of a particular personality test, we would generally encourage you to avoid this kind of screening.