Time & Attendance
By Jon Hyman
Oct. 14, 2014
The ABA Journal (hat tip: Overlawyered) is reporting that the EEOC is investigating whether several well-known companies are violating the ADA by using pre-employment personality tests to screen applicants.
I cautioned employers about this issue three years ago. This is what I said:
Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA.
The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.
Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:
Is A Medical Exam
Is Not A Medical Exam
Prior to an offer of employment: Personality tests are prohibited. No limits on the use of personality tests. After an applicant is given a conditional job offer, but before s/he starts work: Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category. No limits on the use of personality tests. After employment begins: Personality tests are permitted only if they are job-related and consistent with business necessity. No limits on the use of personality tests.
What does all this mean? The use of personality tests raises complex legal and business issues, even more so now that this issue is on the EEOC’s radar. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.
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