In the early 1990’s, Target was embroiled in litigation due to a particular hiring practice: psychologically testing its employees.
Would-be security guards filled out applications for the chain and were then invited to fill out a psychological test to ensure that they would be able to deal with the stress of nabbing petty crooks. The test, a “true or false” exam, required applicants to verify 700 statements, including the following: “I am very strongly attracted to members of my own sex,” “I have never indulged in unusual sex practices,” “I believe my sins are unpardonable,” and “I believe in the second coming of Christ.” The ensuing lawsuit resulted with a 2 million dollar settlement for violating the state labor code, namely for questions that raised questions of sexual orientation.
Today, most states permit psychological testing so long as it doesn’t look too much like discrimination. But employers in Massachusetts beware: MA is the only state that broadly bans any written test, whether psychological or polygraph, that is used to determine the integrity of the applicant.
Importantly, the damages for using such a test are high. Each instance results in a criminal penalty of between $300 and $1,000, and the applicant has a civil action under which an attorney could collect triple fees. Repeated violations risk fines of $1,500 and even imprisonment for 90-days. There is, however, an exception for law enforcement applicants.
Although the law has been in effect for nearly 4 decades, courts have yet to determine its full scope. Employers should therefore be aware of this prohibition on psychological testing, and be certain that any test complies with state standards. They should also ensure that tests ask no questions that seem discriminatory.
Employers and applicants alike should consider talking with an employment law attorney if they have questions regarding psychological examinations during an application process.
Photo credit: Microsoft
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