Labor
Logic
Seventh
Circuit prohibits use of personality test
By
John D. Finerty
June
1, 2005
 |
| John
D. Finerty, Jr.
|
Employers
use pre-employment knowledge and personality tests regularly. When hiring for
management level positions, especially those in positions of trust such as money
handlers or auditors, employers want to weed out applicants prone to dishonesty
or who otherwise may prove unreliable.
But
when a personality test asks questions that could reveal a mental disability,
such as depression, the personality test goes too far, according to a recent case
from the United States Court of Appeals for the Seventh Circuit.
In
Karraker v. Rent-A-Center, Inc., Case No. 04-2881 (Jun. 14, 2005), the Court held
that the Minnesota Multi-Phasic Personality Inventory (MMPI) was a "medical
examination" under the ADA. Its use was, therefore, illegal as a pre-employment
test that screened out, or had the effect of screening out, job applicants with
disabilities. This is the first case in which a federal circuit court addressed
the permissible uses of MMPI as a pre-employment test. The case provides a useful
analysis of many hiring issues that arise under the ADA.
The
Minnesota Multi-Phasic Inventory
The
MMPI is the most widely used test of adult psychopathology. It was first published
in 1942 by Starke R. Hathoway, Ph.D. and J.C. McKinley, M.D., who were on the
faculty of the University of Minnesota Hospitals. Today, the test may be administered
by traditional paper and pencil testing, or by computer; it is also available
in audio or CD versions and has been translated into 7 different languages.
The
primary use of the MMPI is to assess symptoms of social and personal maladjustment.
The test can be adjusted, and is in fact widely used, to identify job candidates
for high risk public safety positions. It is also used in the criminal justice
and correctional system to classify, treat and manage inmates. Its primary use,
however, is by clinicians to assist in diagnosing mental disorders and select
the appropriate treatment.
The
ADA Bars Pre-Job Offer "Medical Examinations"
The
Americans With Disabilities Act or ADA became law on July 26, 1990. The purpose
of the law was to remove barriers to employment for disabled workers. But the
disabled face many different types of barriers: those in wheelchairs find stairs,
desks, cramped hallways in offices and standard store counter heights to be impediments;
the lack of training materials, technical manuals and employee handbooks in audio
or Braille formats impede the blind. Those with mental disabilities also face
barriers such as employer attitudes toward mental illness. Thus, the ADA covers
both physical and mental disabilities.
The
ADA prohibits the use of pre-employment medical examinations. That is, employers
cannot inquire into applicants' medical conditions before making a job offer.
Employers
may, however, conduct post-job offer medical examinations if it requires all employees
to take the same examination and the results are confidential. Post job offer
medical examination results may be used to make employment decisions to the extent
they are consistent with a business necessity.
Karraker
v. Rent-A-Center
The
Karraker brothers brought a class action against Rent-A-Center alleging violations
of the ADA after the three brothers were denied promotions because they failed
the APT Management Trainee-Executive Profile. The APT was a series of 9 tests
designed to measure such things as math and language skills as well as personal
interests and personality traits.
Part
of the test was taken from the Minnesota Multi-Phasic Personality Inventory. Rent-A-Center
argued the MMPI portion of the test measured simply whether someone works well
in groups or is comfortable in a fast-paced office. The court noted, however,
that the MMPI measures traits such as depression, hypochondrias, hysteria, paranoia
and mania. Elevated scores on portions of the MMPI can also be used to diagnosis
psychiatric disorders.
Rent-A-Center,
however, took the position that the MMPI was a personality test permitted by the
Equal Employment Opportunity Commission's enforcement guidance, not a prohibited
medical examination (The MMPI has 2 sets of criteria — one a clinical set
and one non-clinical). Rent-A-Center, thus, asked the court to find the MMPI was
not a medical examination and, thus, not regulated by the ADA. In making that
request, however, Rent-A-Center conceded a key point.
The
plaintiffs took the position that the MMPI was being used as a pre-employment
medical examination and was illegal as a matter of law. The court noted Rent-A-Center
could have argued that the test was an evaluation tool used during employment
rather than a pre-employment screening device.
Performance
tests and evaluations that are "job related and consistent with business
necessity" are legal under the ADA. In other words, Rent-A-Center could have
taken the position that an employee's application for a promotion merely served
as the occasion to administer the test and that the employer used it merely as
a tool to assign the right employee to the right job.
Conceivably,
under that theory, the MMPI would not simply screen out unsuitable employees,
but it might also reveal the exceptional employee misassigned to lower grade position.
Rent-A-Center, however, gave up that argument by agreeing with the plaintiffs
that the MMPI was a pre-employment test.
Analysis
The
court held Rent-A-Center's use of the MMPI was illegal because it measured traits
that are not relevant to promotion. The court noted that psychological tests designed
to identify a medical disorder or impairment qualify as medical examinations,
but psychological tests that measure personal traits such as honesty, preferences
and habits do not. Rent-A-Center's use of the MMPI could reveal mental disorders
or impairments such as depression.
Rent-A-Center's
explanation for this point, however, did not pass muster with the Court:
“RAC
argues in its brief that the MMPI does not test whether an applicant is clinically
depressed, only ‘the extent to which the test subject is experiencing the
kinds of feelings of depression that everyone feels from time-to-time (e.g., when
their favorite team loses the world series).’ Although that particular example
seems odd to us (can an Illinois chain really fill its management positions if
it won't promote disgruntled Cubs' fans?), the logic behind it doesn't seem to
add up, either. ... [Rent-A-Center] suggested that an applicant might, for example,
score high on the depression scale because he lost his keys that morning. But
why would RAC care if an applicant lost his keys the morning of the MMPI or took
the test the day after another Cubs' loss? Would RAC really want to exclude an
employee from consideration for a promotion because he happened to feel sad on
the wrong day?”
Clearly,
the court did not buy Rent-A-Center's explanation for why measuring for mental
impairments was a part of the test used to consider employees for promotion.
What?
No baseball analogy?
Judge
Terence T. Evans authored the Karraker decision. Judge Evans has used sports analogies
on previous occasions, but he is most adept at baseball analogies. His opinion
in Hunt's Generator Committee v. Babcock & Wilcox Co., 863 F. Supp. 879 (E.D.
Wis. 1994) is legend.
In
Karraker, however, he opened the opinion by noting that National Football League
teams "test aspiring professional football players' ability to run, catch
and throw. But that's not all. In addition to the physical tests, a draft prospect
also takes up to 15 personality and knowledge tests. ..."
His
reference to the NFL implies some question about the legality of the famed Wonderlic
test. Prior to the spring NFL draft, college players work out at the NFL Combine
in Indianapolis and take the Wonderlic test. The test is an IQ test of 50 questions.
Fifty is a perfect score; ten is considered literacy.
A good
description of the Wonderlic test and the challenges it poses for employers was
discussed in "Wonderlic results test both players and scouts in NFL"
MILWAUKEE J. SENT. (Feb. 20, 2000). That article, and Paul Zimmerman's book, "The
New Thinking Man's Guide To Pro Football" compares football players' scores
with those of employees in other professionals, such as chemists, computer programmers,
news writers, salesmen, bank tellers and others.
With
the exception of chemists, the results are surprisingly similar. In any event,
the Wonderlic test is merely an IQ test; it is a shortened version of what many
of us know to be problem solving tests from grade school or high school. As a
basic IQ test, it should fall into the permissible category of knowledge or skill
tests that are not governed by the ADA.
For
more information on this case or for assistance in implementing ADA compliant
employment tests, contact John D. Finerty, Jr. at Michael Best & Friedrich
LLP at (414) 225-8269 or on the Internet at jdfinerty@michaelbest.com.
