Two main areas that these tests violate are invasion of privacy and disparate impact on protected classes of applicants. For example, a California employer recently paid $2,000,000 in a settlement to job applicants who had to answer questions about their sexual and religious practices when applying for a job with the company.
While the debate is still on concerning the validity of personality tests in predicting performance of an employee, employers are quickly learning about their risk exposure when there are improper questions being asked of applicants who decide to sue. Even though employers may be using official forms provided by companies who regularly prepare these tests, employers should nevertheless have their counsel review the forms to see if they comply with Indiana law or the law of any other state where the employer is using the forms. In other words, what may be lawful in California may be unlawful in Indiana.