Court rules personality test runs afoul of Americans with Disabilities Act

by on December 16, 2008 · 0 Comment POSTED IN: HR Info Center

Personality Testing and ADA Compliance

In June 2005 the courts slammed a company in an ADA lawsuit that used the MMPI personality test. But don’t get spooked. It doesn’t mean you’re going to get sued if you keep using similar tests in your recruiting process.
When used properly, such tests – which give insight into what types of jobs people are best suited for – can be extremely helpful not just to companies but to prospective employees.
That said, this case shows how misuse of a personality test can be non-ADA compliant, and expose you to ADA lawsuits.

ADA Lawsuit Facts

Three brothers; Steven, Michael and Christopher Karraker, worked for a retail store chain called Rent-A-Center (RAC). Before promoting people, the company required employees to take the APT Management Trainee-Executive Profile, which was made up of nine tests designed to measure math and language skills as well as interests and personality traits.
As part of the APT Test, employees were asked 502 questions from the Minnesota Multiphasic Personality Inventory (MMPI), a test the employer said it used to measure personality traits.
The ADA compliance issue: RAC’s version of the MMPI didn’t just measure personality traits. It also revealed where applicants fall on scales measuring depression, hysteria, hypochondriasis, paranoia and mania.
The plaintiffs, who were denied promotions, argued that because the MMPI could reveal mental disorders, it was in fact a medical test. Since it was administered prior to employment decisions, and since it influenced those decisions, it was a clear violation of the ADA.
As you know, the Americans with Disabilities Act seeks to remove not just physical but attitudinal barriers that prevent people with disabilities from succeeding in the workforce. That’s why all medical exams are forbidden before employment decisions are made. If such exams were allowed, they could easily be misinterpreted due to either bias or ignorance.
That’s precisely what the Seventh Circuit U.S. Court of Appeals was concerned about in this case when it ruled that the MMPI test was indeed a medical test, and that by using it RAC violated the American Disabilities Act.
The ruling does not mean all personality tests are illegal. The judge wrote: “One factor may be enough to determine that a procedure or test is medical. Psychological tests that are designed to identify a mental disorder or impairment qualify as medical examinations, but psychological tests that measure personality traits such as honesty, preference and habits, do not.”

ADA Compliance: What to look for in your test

It is suggested that all questions in any personality tests your company administers are reviewed. Here are some of the true-or-false questions that appeared in the test RAC used:

    “I see things or animals or people around me that others do not see.”
    “I commonly hear voices without knowing where they are coming from.”
    “At times I have fits of laughing and crying that I cannot control.”
    “I have a habit of counting things that are not important such as bulbs on electric signs, and so forth.”

These types of questions appear to be designed to reveal mental disorders. If you have similar questions in your tests, you could be violating the Americans with Disabilities Act
However, employers have every right to ask questions that seek to reveal honesty, detail orientation, assertiveness, confidence, diplomacy, leadership aptitude, discernment and a host of other qualities that can help place the right people in the right jobs under law.

Being ADA compliant in Pre-Employment Testing

Technically, ADA law prohibits “pre-employment” medical tests. In this case the plaintiffs already worked for the company when they were tested, but for the purposes of ADA compliance they qualified as “pre-employment” because they were seeking promotion. RAC didn’t contest the point.
Take home: You have the right to conduct medical tests after hiring employees. And you can use the results of those tests to ensure that employees aren’t placed in positions where they’d endanger themselves or others. But you cannot use the results to disqualify an employee who seeks promotion.
If you conduct personality tests, even perfectly legal ones, you need to keep them under lock and key. In this case, RAC did so and was able to fight off a secondary complaint that they’d violated the Karrakers’ privacy rights.
Cite: Karraker v. Rent-a-Center, No. 02-2026, 7th Cir., 6/14/05.

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