Game-based assessments under scrutiny when the game resembles a clinical test

Game-based assessments are sold on engagement and a better candidate experience. A new complaint in California shows that the format can also raise a question the industry rarely discusses in the open. At what point does a game stop being a job-relevant test and start resembling a clinical examination?

On 9 October 2026, HR Dive reported on a complaint filed by the American Civil Liberties Union and the ACLU of Northern California with the California Civil Rights Department. The complaint targets the assessment vendor Criteria Corp and its product Emotify, which, according to the company's website, measures emotional intelligence through matching and prediction games and an emotional problem-solving scenario game. The ACLU alleges that the test may disproportionately screen out applicants with autism, in violation of California's Fair Employment and Housing Act.

Criteria Corp had not responded to HR Dive's request for comment by the time the article was published. This is a complaint rather than a ruling, and that distinction matters.

At the heart of the complaint is the claim that Emotify parallels clinical diagnostic tools for autism so closely that it amounts to a disability-related inquiry or a medical or psychological examination, which are subject to specific restrictions under US employment law. The ACLU further argues that the ways in which Emotify differs from those tools, including the speed of the tasks, only increase the risk of disparate impact, meaning results that fall harder on a protected group than on others.

The complaint also states that candidates are not given enough information to decide whether they need an accommodation or an alternative assessment. Finally, it says that Criteria's other products may raise concerns about discrimination based on disability, race and sex that merit further investigation. For the cognitive aptitude test Cognify, the developers themselves flagged statistically significant and practically meaningful disparities between Black and White test takers and between female and male test takers, according to the ACLU.

The complaint highlights a downside of the game format that is just as relevant outside the United States. When a test measures the ability to read or predict emotions, and does so under time pressure, the tasks can end up overlapping with instruments used in clinical screening. That does not make the test a diagnosis. It does shift the burden of proof. The employer has to be able to explain why that particular trait is necessary for the job and how an applicant with a disability can obtain a reasonable accommodation.

Olga Akselrod, senior counsel for the ACLU's Racial Justice Program, is quoted by HR Dive as saying that both vendors and employers have a legal obligation to thoroughly vet any assessments to ensure they comply with anti-discrimination law. That responsibility is shared and does not disappear because the test was bought from a third party. Denmark has its own prohibition on disability discrimination in employment, so the question is not purely American.

The case gives a concrete reason to ask a few questions before introducing or renewing a game-based assessment.

The first is what the game measures and how the vendor has documented that the trait is relevant to the roles the test is used for. An engaging format is not an argument in itself.

The second is whether the vendor has examined score differences between groups and whether that documentation can be shared. The complaint specifically notes that, according to the ACLU, the developers of Cognify had recorded such differences themselves.

The third is which accommodations and alternative formats exist, for example without time pressure, and how candidates are told that the option exists before the test begins.

The fourth is whether the tasks resemble clinical screening instruments and what the vendor has done to assess that risk. It is an uncomfortable question, but better asked by you than by a regulator.

HR Dive notes that lawsuits over AI and screening tools have met with varying degrees of success. Sirius XM was granted summary judgment in a case in which an applicant alleged that the company's hiring software disproportionately screened out African American applicants. The court said the plaintiff had not shown how the employer's alleged use of AI discriminated against him. Workday, by contrast, still faces an ongoing case examining whether its screening tools violated California law, and like the ACLU complaint it involves the Fair Employment and Housing Act.

The complaint against Emotify is therefore an early step with an uncertain outcome. What it does show is that the debate about bias in testing has reached the game format, and that disability has joined race and sex on the agenda. For employers using game-based assessments, it is a prompt to reread the documentation with those four questions in hand.

Source: https://www.hrdive.com/news/aclu-files-california-complaint-over-emotify-hiring-assessment-tool/832596/