Feedback on Integrity Tests

The following letter relates to a recent article about a court ruling affecting integrity tests.

Dear Editor:

While there has been a lot of confusion regarding the 7th Circuit Court of Appeals recent decision regarding an employer’s use of the Minnesota Multiphasic Personality Inventory (“MMPI”), your publication’s recent article entitled “Court Ruling that Employer’s Integrity Tests Violated ADA Could Open Door to Litigation” really takes this lack of understanding to a new level.

Contrary to the article’s assertion that the MMPI is “…the most popular screening test used by U.S. employers…”, it is not a commonly used test in the employment domain. In fact, it is used only by a handful of employers to screen for safety-sensitive positions (e.g., flight crew, nuclear plant operator, police officer)–except in some isolated, misguided instances like Rent-a-Center’s use.

With respect to the recent litigation that stimulated the article, Karraker v. Rent-A-Center…(the) holding by the Seventh Circuit has no impact on the vast majority of testing instruments utilized by employers. The instruments used by most employers were not developed to help identify any disabilities nor do they contain items that are likely to reveal the existence of a disability.

According to the ADA and extensive guidance provided by the Equal Employment Opportunity Commission, such tests are not medical in nature and should be administered prior to tendering a conditional offer of employment.

The Seventh Circuit’s opinion relied extensively upon long-existing Equal Employment Opportunity Commission guidelines regarding medical examinations, and merely reinforced the commonly held notion that the District Court had erred in deciding that the MMPI was not a medical test. The decision’s impact is minimal except for correcting the District Court’s misguided decision regarding when the MMPI can legally be administered. The opinion merely said that the MMPI could not be administered prior to an employer tendering a conditional offer of employment.

Flying in the face of your article’s characterization that the MMPI is an integrity test, the 7th Circuit Court of Appeals acknowledged that “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 (emphasis added), preferences, and habits do not.”

The article also indicated that a “…recent survey found fewer than a dozen…” lawsuits had been filed against employers use of integrity tests. In reality, there have been approximately 35 complaints filed against employers who are using integrity tests–a relatively small number in light of the large number of these instruments administered.

And unmentioned in the article, these suits have been consistently disposed of (in favor of employers) at the administrative level (e.g., EEOC, California Department of Fair Employment and Housing) because the instruments have been shown not to exhibit disparate impact and have extensive validation evidence documenting that they are job related and consistent with business necessity. Apparently employers use integrity tests since they aren’t commonly challenged, they don’t contain invasive items, they don’t exhibit disparate impact and they have been shown to be job-related.

Very truly yours,

William G. Harris, Ph.D.
David W. Arnold, Ph.D., J.D.
Executive Director
General Counsel
Association of Test Publishers

Editor’s note: The story took particular note of the fact that the MMPI was not designed as a workplace integrity tool. It also pointed out that this has not prevented employers for using it as such, as was the case with Rent-a-Center. Further, the story did not contend that all integrity tests are now suspect. The issue is that integrity tests whose design is similar to the MMPI might run afoul of the ADA. And while the Association of Test Publishers believes that the 7th Circuit Court’s decision has limited impact, other employment law and testing specialists disagree, as the story shows.

As to the MMPI’s popularity, the story relied on research by employment law attorney John Canoni, who is quoted in the article. Mr. Canoni defers to the Association of Test Publishers in its assertion that that the MMPI is not the most popular test in use by employers. Finally, because of an editing error, the story incorrectly said that the 1991 decision in the Target case was a U.S. Court of Appeals decision. The court that handed down the ruling was the California Court of Appeals.