Some employers, eager to hire only honest employees who won't cheat the company, screen applicants by asking them to take honesty tests or personality tests. However, these tests can violate applicants' right to privacy -- and create the possibility of discrimination by the employer. As for lie detector or polygraph tests, the law prohibits most employers from using them.
Polygraph Testing is Off Limits
A federal law, the Employee Polygraph Protection Act (EPPA), prohibits most private employers from asking or requiring applicants and employees to take a lie detector test. (This law applies to mechanical or electrical devices used to measure physical responses as a way of deciding whether a person is telling the truth; it doesn't apply to written or oral honesty tests.)
There are only a few exceptions to the EPPA for private employers. Employers that provide certain types of security services (such as armored car or guard services) may require job applicants to take a polygraph, as may certain employers that manufacture, distribute, or dispense controlled substances. The only exception that applies more generally, regardless of the employer's industry, allows employers to require a polygraph in connection with an ongoing investigation of an economic loss or injury to the business. A number of restrictions apply to this exception (for instance, the employee to be tested must have had access to the property and the employer must have a reasonable suspicion that the employee was involved). In addition, an employer who relies on this exception to administer a polygraph must follow a long list of procedural rules intended to protect the employee's rights.
Learn more about your Rights to Privacy in the Workplace.
Because polygraphs are generally prohibited, some employers have turned to personality or psychological tests to screen applicants. Although this type of testing isn't prohibited, it can violate applicant's rights in a few ways:
- A multiple choice aptitude or personality test may discriminate against female or minority applicants because it really measures test-taking ability rather than actual job skills or personality traits. (Studies have shown that some aptitude tests are biased against these groups.)
- A personality test may invade an applicant's privacy by inquiring into topics that are personal, such as sexual preferences or religious beliefs. These tests can also lead to discrimination, if an employer decides not to hire someone based on his or her answers to questions dealing with, for example, religion.
- Psychological or personality tests may include questions that would reveal whether the applicant has a mental impairment or disorder. Because mental impairments may constitute disabilities under the Americans with Disabilities Act (ADA), these tests are treated as medical tests under that law. This means, among other things, that the employer may require these tests only after making a conditional offer of employment; the test must be the last stage in the screening process; all applicants must be required to take the test, regardless of disability; and the results of the test must be kept in separate, confidential medical files.
These rules have taken shape over the last couple of decades, as employers have gotten into legal trouble for requiring applicants to agree or disagree with statements such as, "I believe my sins are unpardonable," "I have never indulged in unusual sex practices," or "At times I have fits of laughing and crying that I cannot control." Over time, many employers have decided that these types of tests are best left to the doctor's office, not the workplace.
Learn more about the Hiring Process.
Get Legal Help
If you believe an employer required you to submit to honesty or psychological testing that violated your rights, you should consider a consultation with an employment lawyer. A lawyer can assess the situation and help you figure out whether you might have a valid legal claim. If you were tested by a large employer that requires all applicants to take a possibly illegal test, the lawyer may be interested in challenging the policy on behalf of all affected applicants in a class action lawsuit.