A recent court case, Karraker v. Rent-A-Center, Inc., concerned in part the use of the Minnesota Multiphasic Personality Inventory (MMPI) for making personnel decisions. For a period of time, the company (Rent-A-Center) required all employees or outside applicants seeking management positions to submit to a battery of nine separate written tests. One of the individual exams included in the test battery was the MMPI. According to the company that markets and sells this test, the MMPI measures such things as Hypochondriasis, Depression, Hysteria, and Psychopathic Deviance. The challenge by the plaintiff was that the use of the test violated the Americans with Disabilities Act rule against the use of medical testing prior to a conditional job offer being made to a candidate.

At the trial level, the judge ruled use of the test did not violate the ADA, despite its being administered before a conditional job offer was made. However, the 7th Circuit Court of Appeals overturned this decision and ruled in favor of the plaintiff in regards to the test. Specifically the appeals court reviewed the evidence and concluded that:

The practical effect of the use of the MMPI is similar no matter how the test is used or scored -- that is, whether or not Rent-A-Center used the test to weed out applicants with certain disorders, its use of the MMPI likely had the effect of excluding employees with disorders from promotions.

The implications are relatively straightforward:

• A company must be careful about using a personality test (such as the MMPI) that may be considered a medical examination before making a job offer. Of course, using such a test after a conditional job offer has been made can also be challenged as discriminatory.
• A company should review all of their pre-employment selection steps, including any tests, to assess whether or not they would constitute a medical examination. Expert advice (e.g., an industrial psychologist) may be helpful, especially in connection with any psychological testing.

You may be wondering what exactly are the factors that determine whether a particular test or selection practice is a medical examination. If you examine the relevant EEOC guidelines, you will find the following list of factors, which EEOC says are helpful in determining whether the procedure or test is medical or not:

• Is it administered by a health care professional or someone trained by a health care professional?
• Are the results interpreted by a health care professional or someone trained by a health care professional?
• Is it designed to reveal impairment or physical or mental health?
• Is the employer trying to determine the applicant's physical or mental health or impairments?
• Is it invasive (for example, does it require the drawing of blood, urine or breath)?
• Does it measure an applicant's performance of a task, or does it measure the applicant's physiological responses to performing the task?
• Is it normally given in a medical setting (for example, a health care professional's office)?
• Is medical equipment used?

EEOC also provides some helpful examples. One example is: An employer requires applicants to lift a thirty pound box and carry it twenty feet. This is not a medical examination; it is just a test of whether the applicant can perform this task. But, if the employer takes the applicant's blood pressure or heart rate after the lifting and carrying, the test would be a medical examination because it is measuring the applicant's physiological response to lifting and carrying, as opposed to the applicant's ability to lift and carry.

Finally, this example provided by EEOC is particularly relevant for companies using psychological tests: A psychological test is designed to reveal mental illness, but a particular employer says it does not give the test to disclose mental illness (for example, the employer says it uses the test to disclose just tastes and habits). But, the test also is interpreted by a psychologist, and is routinely used in a clinical setting to provide evidence that would lead to a diagnosis of a mental disorder or impairment (for example, whether an applicant has paranoid tendencies, or is depressed). Under these conditions, this test is a medical examination.

Bottom line: Take the time to review your pre-employment testing program to make sure it doesn't violate the ADA.