Many people still believe personality tests are illegal and that their use exposes an employer to more risk. But a new research paper titled Legal Risk in Selection: An analysis of processes and tools presented at the Society for Industrial Organizational Psychology conference dispels many of the lingering myths associated with using personality and other employee tests.
The research findings reviewed EEOC and OFCCP cases settled both in and out of court between 1998 and 2010. Two key areas were covered: (1) type of selection test and (2) the hiring process.
Based on the findings, personality and other psychometric tests do carry some risk. But in nearly every case, the challenge did not involve the validity or reliability of the test but how the assessment was used. For example, according to Dr. Charles Handler, one of the most respected authorities on employee selection, “Cases that went to trial around selection devices were decided for the plaintiff only 28% of the time, vs. 68% for those related to the selection process, meaning that process issues are more likely to land an employer in hot water.”
Cases related to inconsistent process accounted for the largest percentage of all process related cases and over half of these were settled prior to court. A whopping 91% of all inconsistent process cases were found to be discriminatory.
Some examples of process related cases that were lost include:
- In Dennis v Columbia Colleton Medical Center (2002), the U.S. Court of Appeals described the hospital’s selection process as “a peculiarly informal process” because their explanations for not hiring the plaintiff were different from the written job description, giving the decision “a flavor of post-hoc rationalizations.”
- In Dunlap v Tennessee Valley Authority (2008), the court determined the company’s hiring process was discriminatory because they found 70 counts of manipulating test scores and changing interview and test scores in candidate rankings.
- In Allen v Tobacco Superstore (2007), the company relied on word of mouth to publicize open positions and had no consistent procedures for advancement; employees simply asked a supervisor to be considered. The court found the word-of-mouth hiring and promotion process – which resulted in a company-wide dearth of Black store managers despite operating in communities with large Black populations – was discriminatory.
Here’s a checklist of things HR and hiring managers must do to lower the risk of discrimination and improve the success of their hiring process.
1. Use a structured interview. According to Dr. Handler, “if you are not using a structured interview process, you have a problem.” I couldn’t agree more. The casual, off-the-cuff interview is not only poor risk management but not very predictable when selecting employees.
2. Be consistent. Interview questions must be consistent with job relatedness. Even if the interview questions are structured and managers trained in behavioral interviewing, it doesn’t mean the questions are job related (Dennis v Columbia Colleton Medical Center (2002). The same goes for the job board ad or word of mouth referral programs you use. If you write an ad or ask a question related to a responsibility or skill that is not required for the job, you open the door wider for adverse impact claims to step in.
3. Remain objective. Pre-employment testing IS legal. It’s also a best practice with positive results reported time and time again. Testing is not an astrology or voodoo-like experience but a scientifically proven practice that leads to better hiring results without increasing the risk of adverse discrimination.
Using pre-employment tests for the right reasons (job-relatedness) is the equivalent of having a skilled, unbiased, third party manager interview candidates. Many pre-employment assessments also include job-related interview questions, based on candidate results. These questions structure the interview and keep the focus on job-relatedness.
This article originally appeared in The Total View, a weekly online newsletter that focuses on hiring, management and retention strategies. The Total View is written and published by Ira S. Wolfe, president of Success Performance Solutions and is distributed with permission by The Chrysalis Corporation. Subscribe for FREE to The Total View by typing your e-mail address in the newsletter sign-up box on the right side of this page.