Sustainability: Emotional intelligence

Emotional intelligence testing is an emerging trend, but it can have its pitfalls. Gabrielle M. Wirth offers some best practice advice to avoid legal challenges from emotional intelligence interviews and tests.


Emotional intelligence, or “EI,” can be more important to a manager’s success than technical skills. A number of testing tools have sprung up to help hiring executives assess a candidate’s EI. While these tests can provide insight into a candidate, however, beware—they also can raise big legal issues and risks.

Improving executive emotional intelligence is an emerging trend in leadership development consulting. Important aspects of EI are self awareness, the ability to communicate and influence, and commitment and integrity. Executives with high levels of emotional intelligence promote teamwork and facilitate leadership because they’re aware of how their actions affect co-workers and customers. Executives with lower EI levels tend to have interpersonal relationship problems and difficulty leading change, according to Donald Goldman’s book, Working With Emotional Intelligence.

As with the use of psychological tests, there have been claims that the personal nature of EI test questions violates an applicant’s or employee’s right to privacy. Others claim that cultural differences cause lower or higher EI scores in a discriminatory manner. Some EI tests have been found to have a disparate impact on protected classes of persons. For example, tests containing questions concerning an applicant’s sexual, religious and moral preferences are illegal because the answers don’t directly measure the essential characteristics for a position.

Hundreds of studies show traditional paper and pencil tests used to measure employee competence can minimize discrimination claims. There is much less guidance available on evaluating EI while minimizing legal risk. There also is much debate about evaluating EI through interviews and questionnaires because there are legal issues associated with each. Courts have held that applicants have a much lower expectation of privacy than do existing employees. Thus, EI tests used to evaluate existing executives must meet higher standards than those used for interviews.

The Uniform Guidelines on Employee Selection procedures issued pursuant to Title VII of the Civil Rights Act and other antidiscrimination and privacy laws apply to these tests. In order to validate a test under the guidelines, an employer must have data showing that its tests measure identifiable characteristics that are determined essential to successful performance in the specific job at issue.

There are significant differences, however, in the legal risks associated with EI tests and EI interviews. A test made up of written questions can predict specific outcomes and minimize discrimination claims because it provides a standard set of questions to all job applicants. Interviews are more problematic as the current trend is to ask fewer, open-ended questions. EI interviews should be structured such that candidates are asked the same set of questions. For example, a popular question to test self awareness is: “Tell us about a time when your team did not agree with your approach toward a goal. How did you respond and what was the result?”

A little precaution around the use of EI tests will go a long way toward reducing legal risks—and toward making a good hire. Here are a few best practices to avoid being sued over EI interviews and tests.

Qualify the candidate before using EI
Use EI tests only after the candidate has been qualified for the position based on more objective factors such as reference checks. If a candidate is not eligible based on other reasons (such as failure of a background or reference check) there is no need to obtain the more personal information that an EI test elicits.

Tailor your interviews and tests to essential traits for success
Demonstrate that traits you’re measuring are clearly job related. Some companies hire consultants to perform a job analysis study. Better yet, use tests proven to measure EI as it’s related to performance at identical or similar jobs. If you buy a test, ask the test provider for documentation that the EI test or interview questions have been validated following recognized guidelines—or at a minimum, that have been shown to predict success in similar jobs.

Standardize EI test questions
Interviews can be more subjective and riskier than written tests because they solicit varied information in follow up questions. If you are interviewing to assess EI, create a standardized and structured behavioral interview that asks identical work-related questions that determine how applicants handled past problems. A standardized interview demonstrates that all applicants were evaluated on the same criteria.

Improve EI in existing managers through training
If you are using EI to screen new executive applicants, EI analysis should also be used as a learning development tool for your existing managers. Otherwise, it is difficult to argue that EI is an essential management tool. Provide follow-up coaching for successful candidates who were screened using EI questions or tests.

Monitor results to assure no adverse impacts
As with any employment practice, the results should be reviewed to ensure there is no adverse impact on any protected category of applicants. Consult with your attorney if only one race, gender or protected category passes or fails the screening.



Gabrielle Wirth is a partner at Dorsey & Whitney LLP in their litigation practice. Her emphasis is on complex employment litigation and class actions including sexual harassment, race, age, sex and disability discrimination, wrongful discharge, wage and hour, unfair competition, WARN Act, misappropriation of trade secrets, alter ego and invasion of privacy. She attended the University of California Berkeley, graduating with an AB and received her JD from Davis School of Law at the University of California.