The Connecticut Lawyer has an interesting article in the last month on the Legality of Personality Tests under the ADA. CBA CoverThe article, written by Connecticut Bar Association member Joshua Hawks-Ladds, "explores the ADA’s impact on personality testing in the workplace, and discusses what type of assessment tools will withstand ADA scrutiny and when these tools can lawfully be implemented." As Joshua notes, the ADA prohibits employers from "using tests or questionnaires that are meant to, or that incidentally, result in discrimination against disabled individuals."

What remains unanswered from the article (and outside its scope) is how prevalent testing really is, particularly in Connecticut. The article does not cite any Connecticut cases or Second Circuit cases.

An EEOC meeting on May 16, 2007, shows however that this is a topic of increasing interest. As noted in their press release:

The U.S. Equal Employment Opportunity Commission (EEOC) today held a public meeting to gather information and address emerging trends in workplace testing and selection procedures, as employers seek lawful and efficient ways to screen large numbers of applicants. Discriminatory employment tests and selection procedures violate EEOC-enforced federal laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.

“Today employers commonly use a range of employment tests and other screening tools to make hiring, promotion, termination or other employment decisions,” said EEOC Chair Naomi C. Earp. “With the growth of technology, buttressed by post-9/11 security concerns, it is important that employers review their applicant selection procedures to ensure they are non-discriminatory.”

If employees and employers are looking for topics that have yet to be fully litigated or explored, the use of personality tests seems ripe for consideration.