Some employers who believe that reference checks are useless and that applications do not provide the true picture of what an applicant is like, are still using pre-employment personality tests to learn more about an applicant. The problem with such tests is that they tend to be unreliable and are not often drafted in a way to be able to predict job performance. In order to learn more about the personality of an applicant, employers use these tests, which sometime ask applicants about their religious or sexual beliefs, among other things. There are a wide variety of personality tests on the market, and employers who use them today would be well-advised to have their employment attorneys review the forms they are presently using. Some forms on the market expose employers to great liability once they are challenged.

Two main areas that these tests violate are invasion of privacy and disparate impact on protected classes of applicants. For example, a California employer recently paid $2,000,000 in a settlement to job applicants who had to answer questions about their sexual and religious practices when applying for a job with the company.

While the debate is still on concerning the validity of personality tests in predicting performance of an employee, employers are quickly learning about their risk exposure when there are improper questions being asked of applicants who decide to sue. Even though employers may be using official forms provided by companies who regularly prepare these tests, employers should nevertheless have their counsel review the forms to see if they comply with Indiana law or the law of any other state where the employer is using the forms. In other words, what may be lawful in California may be unlawful in Indiana.