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Woman Sues Over Personality Test Discrimination

Hemera/Thinkstock(NEW YORK) -- In 2007, Vicky Sandy applied for a job as a cashier, bagger and stocker at a Kroger supermarket in West Virginia. As part of the application process, Sandy was asked to take a 50-question "personality test" that would predict whether she would be friendly and communicate well with customers.

The test, called a "Customer Service Assessment" ("CSA"), was designed by Kronos, a workforce management solutions company, and reportedly evaluates characteristics that could factor into a person's job performance. For example: Is she patient, a team player? Does he listen attentively and respectively?

Those with higher CSA scores are supposedly more cheerful and friendly, and are better able to listen carefully and communicate well with customers than those with lower scores.

Sandy, who is hearing- and speech-impaired, scored a 40 percent. Her post-test results showed that she was less likely than other applicants to "listen carefully, understand and remember" and suggested the job interviewer listen for "correct language" and "clear enunciation," the Wall Street Journal reported.

She was not hired, and subsequently filed a discrimination complaint with the Equal Employment Opportunity Commission. In court documents Kroger stated that it had based its decision in part on her low assessment score.

While the EEOC is still investigating the claim, the issue has brought up larger questions about personality tests, which have become common in the hiring process and are often used to screen applicants in the finance, technology, healthcare and the retail industries.

According to a 2011 poll from The Society for Human Resource Management, 18 percent of 495 randomly selected HR professionals use some kind of personality test in the hiring or employee promotion process. Of these, 56 percent use them for mid-level managers, followed closely by executives (45 percent) and entry-level exempt jobs (43 percent). Seventy-one percent of them said that personality tests can be useful in predicting job-related behavior or organizational fit.

But what the SHRM survey did not say is that they can potentially be used to discriminate against certain potential employees because of, say, their race or gender. From Oct. 1, 2011 to Sept. 30, 2012, the EEOC received 164 charges of discrimination challenging an array of employment tests—including, but not limited to, personality tests, Justine S. Lisser, a spokesperson for the EEOC told ABC News. The EEOC received 100,000 charges of discrimination during the same  period, she said.

"Are you using a test to screen out applicants, or to provide insights on people who you are interested in?" added Daniel Schwartz, an employment lawyer at Pullman and Comley, in Hartford, Conn. "Those are two different reasons."

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.

Copyright 2012 ABC News Radio

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