Among the worst privacy abuses at work are the invasive questions on many personality tests. Such tests often include questions on an employee (or applicant’s) sex life, religious beliefs, bathroom habits and relationships with close family members.
For example, the Minnesota Multiphasic Personality Inventory (MMPI), one of the tests most commonly used by employers, includes the following questions:
I have never indulged in any unusual sexual practices (true or false);
I am very seldom troubled by constipation;
I love my father, and
I believe in a life hereafter.
While no precise data is available, the evidence suggests that millions of people have been required to answer such questions as a condition of employment, and that the number is growing.
Such tests have occasionally been successfully challenged in court. For example, the ACLU of Rhode Island recently won a case before the state human rights commission on the grounds that rejecting applicants on the basis of their answers to the religious belief questions on the MMPI constituted religious discrimination. The MMPI has also been enjoined in California on privacy and sexual preference discrimination grounds.
While these results are encouraging, it is unlikely that they represent a complete answer to this problem. Most of the offensive questions cannot be tied to any form of illegal discrimination. While virtually every state has a common law right to privacy, an employer’s intrusive acts or questions do not violate this right unless the court finds them shocking. While these questions ought to be held to meet this test, courts are very reluctant to find a business practice shocking, especially if there is a legitimate business objective behind it.
A better answer is legislation to address this problem.