To Cloak the Within: Protecting Employees from Personality Testing

Employees and job applicants are often subjected to personality tests that seek sensitive, internal information. These tests can intrude on individual privacy simply by their inquisition, and disclosure of their results can pigeonhole and stigmatize people. The work of sociologist Erving Goffman offers insights into the nature of these harms. Furthermore, the personality tests often do not reliably and accurately measure personality traits, and employers may not have accurately identified traits that enhance performance in specific jobs. Current legal structures, including the federal and state constitutions and the Americans with Disabilities Act, may apply to such tests, but are inadequate to protect privacy. An effective legal structure would recognize these potential harms of personality testing and restrict employers from using them, requiring employers to justify the particular use of a test and limiting permissible tests to those that have demonstrated reliability and validity and have been shown to accurately predict improved job performance in the specific position sought to be filled. Furthermore, such a structure should require employers to maintain the confidentiality of the test results, and hold accountable employers who fail to comply with these privacy-protecting provisions.