According to the U.S. Office of Personnel Management (OPM), “integrity testing” is a “specific type of personality test designed to assess an applicant's tendency to be honest, trustworthy, and dependable.” Employers often associate a lack of integrity with counterproductive workplace behaviors, including theft and workplace violence.
Problems can arise when an integrity test includes questions that may require an applicant to reveal personal information regarding his or her protected class or regarding an actual or perceived medical impairment. In those instances, the test could be violating federal antidiscrimination laws.
Recently, the Equal Employment Opportunity Commission (EEOC) was asked by an entity that “conducts integrity testing of employment applicants for third parties” to comment on specific questions included in an integrity test. The test at issue asked applicants: (1) to describe current use of methamphetamine; (2) to set forth any current use of illegal, non-prescription drugs at work; and (3) whether they would “take things from their employer without permission to get even if they felt that the employer (either the company or their boss) was treating them unfairly.” The EEOC issued an “informal discussion letter” in response to the inquiry.
Upon review, the EEOC first opined that because the test questions “do not ask applicants to disclose their arrest or conviction history,” they do not implicate Title VII liability related to discriminatory use of criminal history information. Title VII does not prohibit employers from asking applicants about current illegal drug use or the illegal use of non-prescription drugs at work, nor does it preclude an employer from asking an applicant hypothetical questions about how the applicant might react in situations that may involve illegal activity. However, the EEOC was careful to point out that an employer still may violate Title VII if evidence indicates that an integrity test was “designed, intended, or used” to discriminate against certain applicants because of protected characteristics. Further, such a test can violate Title VII if the results are adjusted or altered to screen out certain applicants in protected categories.
The EEOC then indicated that the subject integrity test also would not violate the ADA. While pre-employment tests cannot ask disability-related questions or questions that are likely to elicit information about a disability, the ADA does not protect individuals who currently are using illegal and, therefore, an inquiry on that issue does not violate the statute. However, question related to past drug addiction, use, or treatment, would, in fact, be viewed by the EEOC as violating the ADA’s prohibition on disability-related questions.
While an informal discussion letter from the EEOC does not constitute an official opinion, it indicates the position of the EEOC on a specific set of circumstances. Because the letter also sets forth certain circumstances in which the EEOC would have decided differently, it is an important roadmap for employers who are inclined to use integrity testing in their application process.