Pre Offer Personality Test Shot Down by Court

Some see it as an opportunity for HR executives to reassess their approach to hiring. Others see it as a wake-up call for employers to re-examine their test practices.

The June decision by the 7th U.S. Circuit Court of Appeals held that a widely used personality test is a medical examination, and therefore its use as a screening device before an oiler of employment (or promotion) is made violates the Americans with Disabilities Act (ADA). This means that employers should re-examine what tests they give job applicants and candidates competing for promotions, legal experts say. It might even prompt some employers to consider whether they need testing at all in that context.

The decision's reach "is going to be broader than just its own circuit" of Illinois, Indiana and Wisconsin because it deals with a new or undecided question—something that attorneys refer to as "a case of first impression," said Steve Bernstein, an attorney in the Atlanta office of Fisher & Phillips LLP.

The plaintiffs targeted the Minnesota Multiphasic Personality Inventory (MMPI) test—one of nine used by Rent-A-Centers Inc. (RAC) to evaluate individuals for promotions—on the grounds that it is a medical examination that can screen out individuals perceived to have a psychological impairment, and thus is unlawful under the ADA.

It was the first court decision to strike clown a screening test since the ADA was passed.
"This case has a limited holding—but potentially broad consequences,' said Maria Greco Danaher, an attorney with Dickic, McCamey & Chilcote in Pittsburgh. Although the court ruled only [hat the MM PI is to be considered a medical examination, there are various other psychological tests used by employers to determine personality traits. Employers should be aware of' the wider ramification of this decision—that any test that may diagnose psychological disorders can lead to unintended violations of the ADA."

The MM PI test that was used by RAC was developed in the I930s to measure psychological characteristics that can be used to diagnose certain psychiatric disorders in order to make a clinical assessment of mental patients. But that has not stopped employers from using it to assess the personality traits of prospective employees.

Because the court also questioned the validity of the test in helping companies assess future managers—noting that the test can only assess the "mood" of a prospective employee or candidate For promotion on one day—its decision increases the likelihood that other courts will make similar rulings, says Bernstein.

As the court noted: "Would RAC or another employer really want to exclude an employee from consideration for a pro-motion because he happened to feel sad on the wrong day?"
The question whether RAC:s use of the MMPI was job-related and consistent with business necessity was not at issue before the 7th Circuit. A "yes" answer to that question in an-other case would mean that even if the MM PI is outlawed as a pre. offer medical examination, its use during employment is permissible.

The RAC decision is "a wake-up call" for employers, said Mar-shall Tanick, an attorney with Mansfield, Tanick & Cohen in Minneapolis who represents employers and employees. "It opens the door to a wider interpretation of what constitutes a medical test under the ADA."
At a minimum, Danaher suggests, employers must review' their applicant testing procedures to determine whether they include a psychological diagnostic component that might be prohibited under the ADA.

"Most employers use a battery of tests and have been using then for years"—sometimes out of habit more than anything else, Bernstein said.
"Take a careful look at your tests, and confine your testing inquiries to tests that have questions that are job-related. If the test is not job-related. ask yourself: What is the value of the test to the organization?" Bernstein suggested.
In addition, employers should look at what options other than testing they can use to evaluate job candidates.

Source: HR Magazine; HR News Staff, September 2005, ‘Reassess Personality Tests After Court Case’ and ‘Pre-Offer Use of Psychological Test Violates ADA.’

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