The Rhode Island ACLU and CVS/pharmacy announced today the voluntary settlement of a complaint that challenged the company’s use of a pre-hire questionnaire that the ACLU claimed could have a discriminatory impact on people with certain mental impairments or disorders.

CVS/pharmacy utilizes an online job application process that was prepared by an outside vendor for many of its retail store positions. One component of that process required applicants to respond to statements about “many attitudes and experiences.” Specifically, applicants have been required to indicate whether they “strongly disagree, disagree, agree, or strongly agree” with about 100 “attitudinal” statements.

CVS stated that it did not create the pre-hire questionnaire and that it does not score it, and that CVS never sees any applicant’s responses to specific statements. According to CVS, the outside vendor created and scored the pre-hire questionnaire, and then reported to CVS only whether the candidate was recommended for interview or not.

The statements to which applicants were required to respond included:

“You change from happy to sad without any reason.” 

  • “You get angry more often than nervous.” 

  • “Your moods are steady from day to day.” 

  • “There’s no use having close friends; they always let you down.”

Although employers may legally ask questions designed to help determine an applicant’s personality or aptitude for a job, the ACLU’s complaint argued that the questions listed above and similar ones “could have the effect of discriminating against applicants with certain mental impairments or disorders, and go beyond merely measuring general personality traits.” The complaint stated that relying on answers to those questions could have an impact on individuals with ADHD, social anxiety, and other affective disorders. CVS denied these allegations and submitted expert testimony contending that the questions cannot be used to diagnose or identify individuals with mental disabilities.

Under the settlement agreement, CVS has agreed to permanently remove the questions at issue from its online application, and to reimburse the ACLU for its legal fees of $6,750. ACLU volunteer attorney Michael Feldhuhn said today: “We are very pleased that CVS, by agreeing to remove these questions, has demonstrated its concern for ensuring a fair application process for people with disabilities.”

“CVS Caremark has a firm non-discrimination policy and is committed to building an environment of inclusion and acceptance that values diversity across all areas of our business. As such, we are pleased to resolve this matter,” said David Casey, Vice President, Diversity for CVS Caremark. 

In February, the Commission found probable cause to believe that the questionnaire might violate a state law that generally bars employers from eliciting any information, directly or indirectly, that pertains to job applicants’ mental or physical disabilities. The finding was not a ruling on the merits of the ACLU’s allegations, and the parties agreed that their settlement agreement does not constitute an admission by CVS of any wrongdoing or unlawful conduct.