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The pros and cons of personality testing in the workplace.

Even a simple search of the Internet will reveal any number of "psychological experts" who are willing to assist an employer by assessing its employees or potential employees for a range of personality traits and aptitudes. The use of personality tests in the workplace is apparently becoming significantly more commonplace in many industries, as (among other things) the costs of severance packages and the costs of employee benefit plans continue to escalate. Some employers may see testing as a way to avoid future problems in the workplace, and the inherent costs that go along with these problems.

Where these tests can be shown to be scientifically sound, legally defensible--and most importantly--predictive of an individual's job performance, it should come as no surprise that they are being used more and more often as part of the hiring process. Personality tests have a number of potential advantages to an employer. If personality testing is done properly it may very well help an employer find an employee that fits with their organization. Pre-employment testing may also reduce the chance that an employer will hire a poor performer, or a potentially dangerous or even criminally inclined employee. In addition, the traditional tools for hiring or promoting employees such as interviews and reference checks, while a vital part of the process, are largely subjective. One of the benefits of standardized personality testing is that it adds an objective element that may help reduce bias in the hiring process.

Personality tests vary greatly both in respect to content and to form. Some of the principal areas addressed in pre-employment testing include skills tests, intelligence quotients, handwriting analysis, "integrity" tests, and more fundamental tests aimed at ferreting out personality traits. Some of these tests are clearly aimed at eliminating undesirable candidates from selection. For example, "integrity tests" may be used to measure a person's honesty and predisposition for negative behaviours such as theft. Similarly, tests may have questions that are designed to determine whether an applicant is lying during the test in order to achieve what they perceive to be the most favourable outcome, or to otherwise beat the test. Other tests are used to measure comparative performance between applicants who look equally good on paper.

In Canada, personality testing has not yet been the subject of significant litigation. However, as the use of personality testing increases we are likely to see an increase in legal challenges to testing. Issues that may arise in respect of personality testing may include complaints that

* the test is itself not valid and reliable, based on statistical or psychological knowledge;

* the test is not sufficiently focused on the skill set purportedly in issue, to allow the tester to make a reasoned or sound decision;

* the test could be biased based on factors such as gender, age, or ethnicity;

* the test was not administered fairly; or

* the test is unduly invasive or breaches privacy interests.

The first three concerns noted above relate in one way or another to the choice of a test. The fundamental difficulty in choosing any psychological test is knowing whether the test has any reliability or validity. Essentially, a test is valid if it measures what it purports to measure and it is reliable if it is able to consistently produce the same results over time. Unfortunately, the nature of these tests does allow for some degree of flexibility in interpretation, so litigation may boil down to a battle of psychological experts.

In the unionized environment, there are a number of arbitration decisions where personality tests have come under fire when used as part of the selection process for a job posting. In these cases, both the validity and reliability of the test have been under the microscope. As might be expected, a large part of the evidence at arbitration was expert evidence on the merits and weaknesses of the test that was administered. In addition, in a unionized environment, the test faces an additional hurdle in that it must comply with the language of the collective agreement. Ultimately, regardless of whether the job is in a unionized or non-unionized environment, an employer should try to choose a test that is not only reliable and valid, but that also tests the skills or attributes necessary to perform the particular job in question. Otherwise, the results of that test may be challenged, as well as any decision made on the basis of such testing.

Personality tests have--in theory at least--the potential to reduce bias and discrimination by adding an objective element to the hiring process. This benefit can only be realized, however, if the employer uses a test that is in itself not biased or discriminatory. Section 7 of the Alberta Human Rights, Citizenship and Multiculturalism Act prohibits discrimination in employment based on race, religious beliefs, gender, physical or mental disability, and a number of other factors. Section 8 of the Act prohibits an employer from asking questions or making written inquiries as part of the application process that would require an applicant to give information concerning these same personal characteristics. An employer could discriminate directly by asking about a prohibited ground, for example, asking about a person's religious beliefs, during the personality test. Discrimination could also occur indirectly if the test has the effect of screening out or otherwise disadvantaging applicants belonging to a particular group protected by Human Rights legislation. A personality test should only ever ask questions directly related to the necessary requirements of the position.

Another important concern that arises with regard to personality testing is privacy. This is not surprising considering some of the questions asked on these tests can be very invasive. Ideally, the questions asked during the test and the individual's responses should be kept confidential. An employer must also comply with relevant privacy legislation in dealing with information obtained from personality testing. As with any sensitive personal information, the release of test results or expert evaluations based on such tests could seriously prejudice an applicant. Given the complexity of privacy law, inappropriate disclosure of personal information is likely to become a major tort of the future.

Concerns about invading a person's privacy can be alleviated if the potential employee gives informed consent to taking the test. Personality tests are more defensible if the employer is frank and open with the applicant concerning the purpose of the test, how the results of the test will be used, and the relative importance of the test compared to the other selection criteria that will be used in the hiring process. The applicants should be given reasonable notice that they will be asked to take a test. If an employer decides to use some form of testing either to hire new employees or to award internal positions the test must also be administered fairly. The test should be administered by a trained individual in a manner that is consistent for all of the people taking the test. Each applicant should be given equal opportunity to demonstrate his or her suitability for the position, and no one should be given an unfair advantage.

The results of psychological and personality testing can also be relevant beyond the hiring stage. In Bogden v. Purolator Courier Ltd., a 1996 decision of the Alberta Court of Queen's Bench, the plaintiff alleged that he had been wrongfully dismissed. In addition to finding that the employee had been wrongfully dismissed, the Court also found that the employee's supervisor had treated the employee in such a way that the company was liable for intentional infliction of mental suffering. Prior to being hired, the plaintiff had been assessed by a psychological service that found that the plaintiff "tended to lose objectivity and became defensive with criticism." The Court stated that the defendant company, having chosen to obtain psychological profiles for their employees, had a duty to inform the employees' supervisors of the results of the tests so that the supervisors could govern their conduct accordingly. The fact that the employee's manager did not know about the employee's sensitivities did not relieve the company from liability.

What may be taken from this case is that once an employer decides to use personality or psychological testing they must remain aware of this information and the employee's shortcomings beyond the stage of hiring and into the employment relationship. Indeed, if an employer learns of an employee's frailties, that knowledge could affect the employer's obligations to accommodate should the individual show signs of mental illness or distress. Thus this information could create unforeseen obligations which did not exist prior to the use of such evaluations.

Providing these services has become a commodity for many psychological specialists, with predictable results: some tests are hailed as extremely reliable and predictive of behaviour, while others provide less than reliable outcomes. This is the result of a market niche having little in the way of regulation. The common sense advice that a purchaser must be aware of what it is purchasing unquestionably applies here.

Moreover, regardless of how rigorous an organization's attempts are to use psychological testing in their workplaces, these tests should still be used as only part of the process. It is still equally important that employers use traditional hiring practices like due diligence in reviewing the candidate's resume, as well as participating in the interview process, before making a decision.

Our recommendations: make sure you look carefully at a test before you implement one as part of your hiring process; and if you are going to employ a test, don't rely on it to the exclusion of the traditional processes and your own gut feeling--which most employers will say still plays a very large part in any hiring decision.

Garett A. Eisenbraun is a lawyer with the firm of Field LLP in Edmonton, Alberta. Special thanks to Field LLP's research lawyer Sandy Gillett for her contributions.
COPYRIGHT 2006 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2006 Gale, Cengage Learning. All rights reserved.

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Title Annotation:FEATURE on employment/labour law
Author:Eisenbraun, Garett A.
Publication:LawNow
Date:Feb 1, 2006
Words:1637
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