The United States Supreme Court, state legislatures and courts across the country have not extended the right of privacy found in the Constitution to prohibit personality testing by public employers. However, courts have held that questions in personality and aptitude tests cannot be unreasonably intrusive and must be related to the job. Ariz. Const. art. Fla. Const. art. Mont. Const. art.
Several states have statutes that provide a right to privacy.
A prima facie case of intentional discrimination is established when a member of a protected class proves he or she applied and is minimally qualified for an available job but is rejected, the position remains open, and the employer continues to seek similarly-qualified applicants. The employer then bears the burden of production to articulate some legitimate, nondiscriminatory reason for the plaintiff's rejection. If the employer demonstrates a legitimate, nondiscriminatory reason, the plaintiff must prove that the stated reason is a pretext. Pretext is proven by showing a discriminatory motive more likely motivated the employer, or by showing the employer's proffered explanation is unworthy of belief. Merely showing such pretext, however, does not entitle the plaintiff to judgment, rather the court must evaluate the plaintiff's case in its entirety to determine whether or not the plaintiff has sustained his or her ultimate burden of persuasion in proving that the employer has intentionally discriminated.