Personality tests could be discriminatory, said Lisser, if they are intentionally used to treat members of a particular ethnic or religious group worse than others. "There would be disparate treatment discrimination, for example, if an employer only gave personality tests to Hispanics because he thought them inherently untrustworthy and did not give the tests to anyone else," she said. There would also be discrimination "if an employer gave a test to everyone, but the test disproportionately screened out African-Americans and did not predict job success."
Under the Americans with Disabilities Act, if a personality test involves a medical examination—that is, if it measures the individual's physical or mental impairments or health—the test can only be administered until after a job offer is made. (The Minnesota Multiphasic Personality Inventory, for example, is considered a medical examination).
But "if an employer uses a personality test that is a medical examination to screen out or withdraw an offer from someone because of an impairment, then the employer would have to show that the particular job applicant is either unable to perform the essential functions or fundamental duties of the job, or would pose a direct threat," she said.
Also at issue is whether these types of tests actually tell employers anything useful about how future employees might perform on the job. "My research persuaded me that they really don't," said Annie Murphy Paul, author of the Cult of Personality.
"These tests may make Human Resources people feel that they're doing a good job sorting the application pool, but because personality is situational and because these tests are actually not very reliable in terms of their results, they're not a good way to evaluate perspective employees."
Susan J. Stabile, a professor of law at the University of St. Thomas School of Law, in Minneapolis, agreed. "A lot of these tests that measure aspects of personality don't measure things that are particularly job-related," she said. "Let's say someone uses Myers-Briggs. So you know someone is an INFJ—that doesn't necessarily tell you anything about how they're going to do a particular job. There are values to tests like that, but I don't see evidence that they help you get better employees in the end."
Although there have been few lawsuits—primarily because most failed job seekers don't ask for their test results-- there have been some notable cases. According to the Wall Street Journal , in July, Leprino Foods Inc., a Denver-based mozzarella cheese maker and a government contractor, agreed to refund $550,000 in back pay to 253 African-American, Asian and Hispanic job seekers who were denied laborer positions after failing a job skills assessment test called WorkKeys
The government's Office of Federal Contract Compliance Program, which prohibits federal contractors and subcontractors from discriminating on the bases of race, color, religion, sex and national origin in their employment practices, determined that the test's focus on math and observation skills had no relevance to the entry-level jobs that were available.
So are these kinds of tests going to go the way of the pterodactyl any time soon? Unlikely. But they will force employers to rethink the types of tests they use, and whether the tests are even necessary for the available position.