As companies increasingly incorporate personality tests into their pre-hire assessments, they are faced with a complex landscape of legal considerations. These tests, whose potential for impact is amplified by the integration of artificial intelligence tools, require close examination to ensure they meet federal, state, and local anti-discrimination and privacy laws.
Saraie and Doty from Alston & Bird stress the importance of first understanding why these tests are essential and how their results fit into broader recruitment goals. The authors argue that companies must scrutinize the specific traits they aim to evaluate, their related relevance to the job roles, alternate methods of measurement, and the moment in the recruitment process at which these tests would be most beneficial. They encourage implementing these tests universally to protect against potential anti-discrimination lawsuits.
Under American law, the legal landscape for pre-employment personality tests is marked by policies such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Incidentally, the Equal Employment Opportunity Commission (EEOC) issued two technical guidances of note. One in 2022, concerned the ADA and the use of AI in software and algorithms, while the other was in 2023 which provided guidance on the effect of software, algorithms, and AI in employment selection procedures under Title VII of the Civil Rights Act [1] [2].
In addition, employers must be aware of local legislation such as the New York City Local Law 144. Effective from January 1, 2023, it mandates that employers and employment agencies using automated employment decision tools must ensure a bias audit has been carried out and required notices have been provided[3].
The authors also mention guidelines codified in 29 C.F.R. 1607.1 in 1978 [4], intended to aid employers in compliance with non-discriminatory requirements.
The potential for third-party involvement in administering these tests does not absolve the employer of legal responsibility. Companies must ensure continuous compliance and monitoring for any potential adverse effects on protected groups.