What are the legal risks of administering psychological tests to prospective employees?
A growing number of companies are using psychological testing as part of their hiring and promotion process. Popular tests include the Myers-Briggs Type Indicator, the Minnesota Multiphasic Personality Inventory (MMPI), and written integrity tests. Employers should be aware that such tests may run afoul of the Americans with Disabilities Act (ADA) if they are designed to reveal an impairment of physical or mental health.

The ADA prohibits employers from using medical exams as pre-employment tests before an offer of employment is made. Any medical exams that are administered must be job-related and must not screen out, or have a tendency to screen out, people with disabilities. Additionally, employers must give the tests to all similarly situated persons, and must keep the results confidential. Because the ADA's definition of "disability" includes mental impairments, psychological testing can, under certain circumstances, constitute a medical exam.

In Karraker v. Rent-A-Center Inc., a federal court held that the MMPI exam (mentioned above), qualified as a medical exam because it was designed, at least in part, to identify mental disorders and impairments. One of the purposes of the MMPI is to serve as a clinical tool for measuring traits such as depression, hysteria, paranoia, and mania. The test is also widely used in a vocational context by employers to determine how well an applicant's personality would mesh with the job responsibilities and company culture.

In Rent-A-Center Inc., three employees applying for management positions were given a personality test that included questions from the MMPI. A candidate could be disqualified solely on the basis of the test results. The employer took affirmative steps, as suggested by the Equal Employment Opportunity Commission, to ensure that the test would not be classified as a medical exam under the ADA. The test was not administered or interpreted by a psychologist. In fact, there were two different protocols for interpreting the test, and the employer made sure to use the vocational protocol rather than the medical protocol. In spite of these precautions, a federal court held that the MMPI was a medical exam because it was designed, at least in part, to reveal mental illness.

What can employers do to limit their legal risks?

• Limit the Importance of the Test: Do no use a personality test as the sole basis for hiring and promotion decisions.
• Avoid Tests Administered or Interpreted by Clinical Professionals.
• Avoid tests that can be used to detect mental disorders and impairments.
• Be Consistent: Administer the test to all candidates in similar circumstances.
• Protect Confidentiality: Do not disclose test answers or results without the candidate's consent.
• Ensure that Tests are Job-Related.
• Ensure that Tests are Statistically Valid: Avoid tests that are ethnically or culturally biased, or have a disproportionate impact on women or minorities.

ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by e-mail (geskridge@eskridgelaw.net.) Please visit our website at www.eskridgelaw.net or www.employmentattorneys.net.

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