Technological Risks for Buffalo New York Area Employers

Two new technological trends, camera phones and online psychological tests, can expose employers to great civil liability. Possible lawsuits include discrimination, invasion of privacy, harassment, and infliction of emotional distress.

RESUME SCREENING. Five million Americans a year take psychological tests, usually over the internet for a wide range of jobs. It is a very quick and inexpensive way for employers to screen out applicants before conducting interviews. These tests raise the following three legal issues:

  1. Whether the test creates a disparate impact on a particular group of applicants such as, minorities. The Equal Employment Opportunity Commission applies a 80% rule. A pass rate of less than 80% for minority applicants suggests that the test has a disparate impact. For example, if 100% of whites pass and only 70% of Hispanics, there may be a problem.
  2. A psychological test may qualify as a “medical test” in violation of the Americans with Disabilities Act, which prohibits pre-employment medical tests. A test that could be used to interpret an applicant’s mental health may violate the ADA. The Seventh U.S. Circuit Court of Appeals held that the Minnesota Multi-Phasic Personality Inventory (MMPI) qualified as a “medical examination” under the ADA. Therefore, it was illegal to use it as an employment test that could be used to screen out applicants with disabilities.
  3. Questions might violate state laws regarding invasion of privacy about religion and sexual behavior.

The following precautions should be taken to avoid charges of discrimination:

  1. the supplier of the test should have studies demonstrating that there is no disparate impact on minorities, women or other protected groups, and that the test scores correlate with job performance and
  2. the test questions must be job related.

CAMERA PHONES. It is estimated that by 2006, 80% of all cellphones will have photo capabilities. Photos taken with camera phones can be transmitted instantly to other cellphones, to e-mail accounts and posted on websites. National fitness chains, YMCAs, courthouses, and major companies have banned camera phones. If a female employee has her photo taken in an area where she has a reasonable expectation of privacy such as a restroom, she could sue for invasion of privacy, harassment under anti-discrimination laws and infliction of emotional distress. If the phone records sound there is liability under federal and state wiretap laws. Employees can easily take photos of intellectual property, trade secrets, customer’s personal information, and proprietary business information. Employers should implement, distribute, and post camera phone policies which state what is and what is not permissible in the workplace. The policy should remind employees of the state’s video voyeurism law which subjects them to criminal prosecution.