The “Snowflake Test”: Is It Legal?

snowflakeWhile it is not uncommon for employers to give assessment tests to potential job candidates, one U.S. company has caught the eye of the media for its unusual vetting tool. Kyle Reyes, Chief Executive Officer of The Silent Partner Marketing, a public relations firm located in Hilliard Mills, Connecticut, created the controversial “snowflake test” as a means of weeding out candidates who don’t fit the company’s culture – specifically, “overly sensitive, liberal candidates that are too easily offended.” However, despite the significant publicity and, in some cases, praise, others have fiercely criticized the assessment and called into question the ethics and legality of it.

According to Mr. Reyes, a “snowflake” is an individual who “is going to whine and complain” and will not bring anything to the table except “an entitled attitude and an inability to back their perspective.” The 30-question snowflake test includes questions such as:

  • What should the minimum wage be?
  • How often should employees get raises?
  • How do you feel about guns?
  • What are your feelings about employees or clients carrying guns?
  • How do you feel about the police?
  • What are your feelings about “safe spaces” in a challenging work environment?
  • What does faith mean to you?
  • You see someone stepping on an American flag. What do you do?

According to Mr. Reyes, the “snowflake test” reveals the types of job candidates the company is seeking: conservative, pro-American, pro-Second Amendment applicants. The company has been able to use the “snowflake test” to eliminate 60 percent of interviewees. Anyone who is not pro-American or pro-Second Amendment is automatically disqualified from the position, according to Mr. Reyes. The CEO’s efforts have been praised by conservative media outlets such as Fox Business and he claims that other businesses have reached out to him with questions on how to implement similar vetting tests in their own hiring process.

However, the “snowflake test” has faced significant criticism and some have questioned the test on an ethical and legal level. Under the laws enforced by the U.S. Equal Employment Opportunity Commission, pre-employment tests are permitted as long as they are not designed, intended or used to discriminate against an applicant based on their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, disability and genetic information.

A legal issue may arise if the “snowflake test” causes disparate impact, disproportionately excluding people based on a protected category, where the test is not “job-related or consistent with business necessity.” Is the “snowflake test” job-related or consistent with business necessity? According to Mr. Reyes, it is. His reasoning as to why there are multiple questions about firearms on the test is that the company frequently works with police and first responders and does a lot of work filming with guns, according to Ragan.com.

If the “snowflake test” is job-related or consistent with business necessity, can someone who is challenging the selection process show that there is a less discriminatory alternative available? Criteria Corp, a web-based HR technology and pre-employment testing company, states that the “snowflake test” lacks the scientific data to back up its validity to predict performance on the job. What about those who argue that the “snowflake test” is unlawfully biased based on political affiliation? Although states may also offer additional protections against employment-related discrimination, including political affiliation, only the District of Columbia, Mississippi, Puerto Rico, Virgin Islands, and Wisconsin protect political affiliation.

When it comes to pre-employment assessments, they can be used as an effective means of finding the best candidate for the job if they abide by the letter of the law. Unfortunately, this is not always the case and, every year, many job applicants are subjected to discrimination during the pre-hiring process. For the last three decades, Steven Mitchell Sack, “The Employee’s Lawyer,” has represented individuals in unfair employee discrimination cases, including matters that relate to the pre-hiring process. If you have been a victim of employment discrimination, contact our New York employment discrimination law office at 917-317-8000 for more information or to schedule a consultation.

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