Integrity tests are personality tests used by employers to assess the tendency of applicants to be honest, trustworthy and reliable. Reasonable expectations for prospective employers to have, right? Yes, but beware the tests’ potential intersection with the anti-discrimination laws. The EEOC recently weighed in, albeit informally, to offer employers some guidance.
A company that conducts such tests for third parties recently asked the EEOC to comment on the lawfulness of certain questions. The test at issue asked applicants: (1) to describe their current use of methamphetamines; (2) to describe their current use of illegal, non-prescription drugs while at work; and (3) whether they would “take things from their employer without permission to get even if they felt that the employer (either the company or their boss) was treating them unfairly.” The EEOC answered that the test questions are acceptable because they “do not ask applicants to disclose their arrest or conviction history,” the employer may ask applicants about current illegal drug use or illegal use of non-prescription drugs at work, and there is no preclusion under Title VII about asking hypothetical questions about how an applicant may react in a situation involving illegal activity. This is good news for employers wanting to dig a little deeper into applicants’ so-called integrity.
But don’t be lulled into thinking all such tests are ok by the agency. As the EEOC explained, an employer may violate Title VII if the evidence shows that a test was “designed, intended, or used” to discriminate against certain applicants based on protected characteristics (i.e., disparate treatment), or if the test results are used to screen out certain applicants in protected categories (i.e., disparate impact).
Practice pointer? If you use these tests, run them by counsel to make sure you’re not running afoul of Title VII, the ADA, or other laws.