What Are the Issues?

When people 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 as a way to prune the job applications they receive.

The problem is that these assessments may also be used to illegally screen out job seekers with mental disabilities. 

As a result, too many people living with mental disabilities that are willing and able to work remain unemployed or underemployed. Not only does the United States economy experience the indirect loss in productivity and tax revenue arising from the unemployment and underemployment of persons with mental disabilities, there is a direct, rising and material cost to the U.S. Treasury associated with income support payments, like Social Security Disability Insurance and Supplementary Support Income. (Please see the post Costing Taxpayers Billions of Dollars Each Year).

Who are these persons with mental disabilities?

They are our sons and daughters, our mothers and fathers, our friends and colleagues. Mental illness is no respecter of age, race, gender, faith, sexual orientation, occupation, social position, education or wealth. Anyone can develop a mental illness.

They are:

• A soldier returning from Afghanistan looking to enter the civilian workforce, who suffers from PTSD as a result of combat
• A mother of a young child looking to support her family, who is recovering from post-partum depression
• A recent college graduate looking to start his career, who has been diagnosed with bipolar disorder

They are us. An estimated 26.2% of Americans ages 18 and older - about one in four adults - suffer from a diagnosable mental disorder in a given year.

At some point during his or her lifetime, the average American adult has a 28.8% chance of developing an anxiety disorders, a 24.8% chance of developing an impulse-control order, and a 20.8% chance of developing a mood disorder.

How widespread is pre-employment testing?

There are hundreds of companies that offer pre-employment assessments and/or implementation services to employers. One of the larger assessment companies, Kenexa (recently acquired by IBM) assesses more than 20 million persons a year. Other large assessment companies include Kronos (through its acquisition of Unicru), Oracle (through its acquisition of Taleo), SAP (through its acquisition of Success Factors) and SHL.

A mid-sized company in the retail business may have 50,000 assessments per month or 600,000 per year. Large “big box” employers and fast food companies may have 1-2 million assessments per year. 

Personality tests are “growing like wildfire,” said Josh Bersin, president and CEO of Bersin & Associates, an Oakland, Calif., research firm. Bersin estimated that this kind of pre-hire testing has been growing by as much as 20 percent annually in the past few years. 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.

“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,” says Bersin, “the medical community is starting to redefine what these diagnoses are, and the laws may not have caught up.”

Are pre-employment assessments legal?

The policy of the Equal Employment Opportunity Commission (EEOC) is that pre-employment testing, including personality testing, is acceptable as long as the test is not a "medical examination" as defined by the Americans with Disabilities Act (ADA).

EEOC guidance provides a seven-factor test for analyzing whether a test or procedure qualifies as a “medical examination,” including whether the test is designed to reveal an impairment of physical or mental health such as those listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

According to the guidance, the presence of any one of the seven factors is enough to support a finding that the test is a medical examination. 

How do the assessments screen out persons with mental disabilities?

A key component of the assessment process is a computer-administered personality test based on the five factor model of personality, or FFM, a coordinate system that maps which personality traits go together in people’s descriptions or ratings of one another. the FFM describes personality in terms of five broad factors:

• Openness: inventive and curious vs. consistent and cautious. 
• Conscientiousness: efficient and organized vs. easy-going and careless. 
• Extraversion: outgoing and energetic vs. solitary and reserved.
• Agreeableness: friendly and compassionate vs. cold and unkind
• Neuroticism: sensitive and nervous vs. secure and confident

The majority of personality disorders are characterized by significant positive relations with Neuroticism and significant negative relations with Extraversion, Agreeableness and Conscientiousness. Consequently, applicants who take the Assessment and have low scores on Openness, Conscientiousness, Extraversion and Agreeableness and high scores on Neuroticism are likely not to be offered employment (or even interviewed).

Based on an applicant’s responses to the online test, the assessment categorizes the applicant as red, green or yellow. In many cases, green gets an applicant an automatic follow-up interview. Red is usually an automatic discard.  A red or yellow score on the Assessment does not necessarily mean that an applicant has a mental disability, but a person who has a mental disability is likely to receive a red or yellow score on the assessment and will be denied consideration for employment.

Some have argued that assessments are designed to measure “normal” personalities and/or “stable” personality traits. That argument fails because, as a dimensional model, the FFM determines each applicant’s position along the axis of each of the five traits. Those five traits are the common measuring rod for all persons, including persons with mental disabilities. By its design and structure, an assessment based on the FFM measures all aspects of a personality, including both normal and abnormal personality traits.

For more information, please see the ADA, FFM and DSM post.

Are the tests designed to intentionally screen out persons with mental disabilities?

Perhaps.

One assessment company, Clearfit, lists “27.2 days/yr. lost productivity for depressed workers” as one of the impacts to employers if personality is not taken into account in the hiring process.

In any event, courts have held that the intent is irrelevant. What is relevant is that the use of the FFM as the basis of an assessment means that the assessment was designed to reveal mental impairments by identifying and rejecting those applicants who do not fall within the “green” parameters of the five traits. 

Are there any studies addressing the impact of assessment tests on persons with mental disabilities?

There has been no public disclosure of any studies addressing the impact of FFM-based assessments on persons with mental disabilities. One prominent assessment company, Kronos, has claimed in a court document, that there is “no known method … to ascertain adverse impact against the entire generic category of disabilities.” Kronos goes on to claim ”that “the diverse nature of disabilities (e.g., blindness, paraplegia, deafness, severe mental illness) makes an analysis of a selection device’s adverse impact on “people who have disabilities” impossible.” Such claims are unsupportable.

As stated in a 2004 article published by the the Journal of Rehabilitation Administration, “studies of sub-groups, such as individuals with mental illnesses or cognitive impairments could be conducted to determine the potential, and perhaps likelihood for, pre-employment test results unfairly penalizing these individuals in the employee selection and hiring stages …” 

Such studies are, in fact, mandated. In a 1975 decision, the Supreme Court addressed a case in which an employer implemented a test on the theory that a certain verbal intelligence was called for by the increasing sophistication of the plant’s operations. The Court held that a test should be validated on people as similar as possible to those to whom it will be administered. The Court further stated that differential studies should be conducted on minority groups wherever feasible.