Suit Challenges Target Stores’ Use of Psychological Tests for Hiring

A former Target Stores security guard filed a suit Thursday accusing the retailer of violating his right to privacy under the state Constitution by requiring him to take a psychological test as a condition of employment. The suit is one of the nation’s first legal challenges of psychological testing in the workplace, a growing employee-screening practice.

The class-action suit filed in Alameda County Superior Court in Oakland claimed that the Minneapolis-based company used the Minnesota Multiphasic test to make hiring decisions and that the test contained “invasive” questions about job applicants’ sexuality, religion, health, political beliefs and emotions.

“The California Constitution establishes a fundamental right to be free from unreasonable intrusions into areas and interests deemed to be private,” the complaint said.

The suit was filed on behalf of Sibi Soroka of Lafayette and other Target job applicants and employees by Saperstein & Seligman, the Oakland law firm that in June won a $12.1-million class-action settlement for Federated Group job applicants and employees who had been forced to take polygraph tests. The Federated suit also alleged violations of privacy rights and state labor law violations.

Federal law now bans the use of so-called lie detector tests in nearly all private employment, but many employers have turned to written “honesty” and psychological tests to screen employees. Saperstein & Seligman attorneys said they believe that the Target suit is the first legal challenge of psychological testing in the workplace in California and perhaps the first in the nation filed against a private employer.

“Many employers who stopped giving polygraph tests now think they can get away with psychological tests,” said Brad Seligman, Soroka’s attorney. “Such tests are just as much, if not more, of an invasion of privacy. This suit is the first step toward ending such testing,” he said.

The Soroka complaint said that he was asked to respond true or false to more than 700 questions on the written test to get his job at a Target store in Pleasanton last April. It said the questions included:

- “I feel that there is only one true religion.”

- “I am strongly attracted to members of my own sex.”

- “I believe in the second coming of Christ.”

- “I have had no difficulty starting or holding my urine.”

The complaint said the questions had no relationship to the jobs applicants were applying for, despite Target’s claim otherwise. The complaint also said the company illegally engaged in unfair business practices by falsely implying that the information collected from the test was required by state and federal laws and that the test violated state law by failing to protect the confidentiality of medical information gained through the testing.

Could Not Respond

In addition, the complaint alleged that questions on the test violated a state law against refusing to hire a person because of sex, race, religious creed or physical handicaps.

George Hite, Target vice president for public and consumer affairs, said the company could not respond to some of the specifics in the complaint because officials had not yet received a copy. However, he said company officials “don’t believe” they have violated California laws. Hite said “personality inventory” tests are given only to applicants for security jobs at Target Stores. That includes only about 300 of some 20,000 Target employees in California, he said.

He said the test is given because of the nature of the job, which often involves stressful situations, and to ensure that such workers are “emotionally stable.” The California Personality Inventory test and the Minnesota Multiphasic test used by the company are “highly respected” instruments used by many police agencies, Hite said. He added that the tests are sealed and sent to a psychologist for evaluation and no Target employees have access to the test results.

The suit seeks unspecified monetary damages for alleged “humiliation, embarrassment, mental anguish and emotional distress” Soroka suffered. It also seeks unspecified damages, legal fees and expenses for other Target employees and applicants who lost their jobs or were otherwise hurt by taking the test or refusing to do so.

Question Not Resolved

Further, the suit asked that the test be declared illegal and unconstitutional and that Target be required to purge all personnel files of “any reference to results of psychological tests.”

California courts have previously been asked to rule on to what extent, if any, the state Constitution’s privacy provisions apply to employment practices by private firms. But the question has not been resolved by the state Supreme Court.