Issue: Whether certain portions of the MMPI and the California Psychological Inventory administered to job applicants (i.e., questions that facially and in isolation suggest they are related to religious and sexual matters) violate the privacy provisions of the California Constitution and certain anti-discrimination laws

Index Topics: Employment; Tests (Use, Validity & Security of Psychological Tests and Test Data)

Facts: Target Stores, in an effort to improve hiring procedures, identified emotional characteristics that are problematic in security guards. On the recommendation of psychological consultants, Target began to administer pre-employment psychological screening tests. The tests were administered with answer sheets which were then placed in sealed envelopes and sent to the consultants for scoring and interpretation. Target received reports on the evaluation from the consultants but did not receive the candidate's responses to specific questions. Plaintiffs, who had applied to Target Stores as security consultants and were denied positions, sued for injunctive relief, to bar the use of particular questions on the Rodgers Condensed CP/MMPI that they claimed violated their privacy rights. Specifically, they asserted that questions that facially referred to religion and sexual orientation violated their rights under the California Constitution and certain anti-discrimination laws. The Superior Court issued an order denying injunctive relief on the ground that the plaintiffs had failed to establish that Target had based its hiring decisions on religious beliefs or sexual traits or that the questions were designed to reveal such information. Plaintiffs appealed and the California Court of Appeals reversed the order denying relief. The Court struck down the individual questions as violating privacy rights focusing on the test questions themselves and disregarding the lower court's factual findings that Target never received the test answer sheets and that the answers had no meaning except in their cumulative power to identify certain emotional traits. The Court held that questions that violate privacy must be directly and narrowly related to the nature of the employee's duties. Target filed a petition for review.

APA's Position: APA filed a letter of interest with the California Supreme Court. It noted that: (1) the tests are widely used for security-related job testing and that there is a large body of scientific literature supporting their use; (2) the court's ruling could be applied to clinical interviews in the employment context, barring questions that "touch" on privacy issues; and (3) since individual items are constructed because they are scientifically correlated with the trait at issue in conjunction with the other test items, the holding of the court that requires individual items implicating privacy issues to be directly and narrowly tailored to employment duties would make it difficult, if not impossible, for such test questions to pass muster. An APA brief was never filed due to the settlement of the parties.

Results: Review was granted by the California Supreme Court but was then dismissed as moot upon settlement of the parties. Once review had been granted, the Court of Appeals decision was automatically "depublished" and rendered uncitable. However, Soroka has been codified by § 1102.1 of the California Labor Code (1992) which was designed to transform the court decision prohibiting discrimination based on sexual orientation into law (effective 1/1/93).