If any test is used to diagnose medical conditions (i.e., mental disorders) rather than simply to assess work-related personality traits, it likely is unlawful, as the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA) restricts an employer’s use of pre-employment medical or psychological examinations of job applicants. So for an employer to use a psychological, personality or EQ test, it must not consist of a prohibited pre-offer medical exam. Additionally, tests that elicit information about political views, religious beliefs, sexual orientation or other information that isn’t job related, or tends to screen out any protected classes, may violate privacy and anti-discrimination laws.

The U.S. Equal Employment Opportunity Commission (EEOC) is investigating whether personality tests automatically eliminate individuals with certain mental illnesses, such as depression or bipolar disorders, and if so, whether these tests violate federal law.

Before conducting psychological, personality or EQ testing, consult legal counsel.

Psychological Testing

Psychological tests are generally regarded by state and federal law as tests that assess the mental health of applicants and employees for purposes of disability law. California disability regulations define “medical or psychological test” as one that “seeks or obtains information about an individual’s physical or mental disabilities or health.”1 Such a test is permissible in only very narrow circumstances under California law.

This type of exam cannot be used prior to an offer of employment. An employer may require a psychological exam after a job offer has been made, but before the employee starts work, provided that all entering employees in similar positions are subject to the exam and the exam is “job-related and consistent with business necessity.”2 An employer may also require an existing employee to undergo a psychological exam, but, again, only if the exam is job-related and consistent with business necessity.

A test is “job related” when it is designed to “assess the employee’s ability to carry out the essential functions of the job or to determine whether the employee poses a danger to the employee or others due to disability.” “Business necessity” means the need for the test is vital to the business.” This is not an easy standard to meet. Even if the standard is met, employers must consider whether the individual could meet the job’s requirements with reasonable accommodation. Employers should consult with counsel before administering any psychological exam seeking information about the mental health of an employee or job applicant.

A California Court of Appeal has addressed the issue of psychological testing of job applicants in the context of the state’s constitutional right to privacy. In the case, an employer sought to improve hiring procedures by identifying emotional characteristics considered problematic in security guards by administering the Minnesota Multiphasic Personality Inventory (MMPI) and the California Psychological Inventory (CPI) in the Rodgers Condensed CPI/MMPI form. The applicants who were denied security guard positions claimed that test questions referring to religion and sexual orientation violated not only their rights under the California Constitution, but also certain anti-discrimination laws.

The California Court of Appeal agreed with the employees, finding that the employer’s psychological testing likely violated both the constitutional right to privacy and anti-discrimination laws because the questions referring to religion and sexual orientation were not related to the security guard position3

Personality Testing

Personality tests have been around for more than a century, but their use dramatically increased in 1988 when federal law banned employers’ use of polygraphs. While there are benefits to assessing a job candidate’s personality traits — such as conscientiousness, extraversion, openness to new experiences, optimism, service orientation, stress tolerance, and initiative or proactivity — there also are drawbacks.

If questions on a personality test aren’t well developed, for instance, they may seem intrusive and their relation to the job may not be apparent. Individuals also may respond to these tests in a way that results in a positive outcome rather than sharing how they really are.

It’s also been argued that many personality tests discriminate against African Americans, Hispanics, Asian Americans and females — and Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act prohibit discrimination based on race, color, religion, sex and national origin in employment decisions. This includes the administration of preemployment tests.

In fact, in 2018, the U.S. Equal Employment Opportunity Commission (EEOC) announced that two companies adversely impacted applicants based on race and national origin through use of personality tests/assessments during the application process. Therefore, the EEOC argued, such tests/assessments violate Title VII of the Civil Rights Act of 1964. Both companies stopped using the problematic assessments after being charged with discrimination and no lawsuits were filed.4

Employers should be cautious and consult with legal counsel about using personality tests as they could violate state and federal discrimination laws.

EQ Testing

EQ is a person’s ability to be aware of, control and express emotion, and judiciously and empathetically handle interpersonal relationships.5

Assessing a candidate’s EQ is thought to be beneficial because empathetic individuals are better able to read body language, and have more advanced social insight, social skills, conflict-resolutions skills, resilience and perseverance, and a flexible mindset.

The problem, however, is that EQ tests may unintentionally discriminate against certain job applicants. Because EQ centers around emotions and interpersonal relationships, for instance, individuals with such conditions as autism spectrum disorder, Attention Deficit Disorder or many mental health conditions will struggle as emotional regulation is a challenge for them. Thus, their use may also violate federal and state laws.

Remember, before conducting any psychological, personality or EQ testing, consult with legal counsel.

1. 2 CCR sec. 11065(m)

2. Govt. Code sec. 12940(f); 2 CCR sec. 11071

3. Soroka v. Dayton Hudson Corp., 18 Cal. App. 4th 1200 (1991)

4. Equal Employment Opportunity Commission, Best Buy and EEOC Reach Agreement to Resolve Discrimination Charge (June 6, 2018); Equal Employment Opportunity Commission, CVS Caremark Corporation and EEOC Reach Agreement to Resolve Discrimination Charge (June 6, 2018)

5. Cherry, K. (2015). What is emotional intelligence? Psychology Today