Update: Testing 1, 2, 3….ADA and personality testing; Appeals Court Overturns Earlier Decision
Last year, I had a posting discussing an interesting court decision regarding the use of the MMPI, where the judge ruled use of the test did not violate the ADA, despite it being administered before a job offer was made.
Now, the 7th circuit court of appeals has
overturned the decision and ruled in favor of the plaintiffs in regards to the test.
At issue was whether “the MMPI fits the ADA’s definition of a “medical examination.”"
The lower court had ruled it was not covered by the ADA’s definition, a conclusion that frankly, I didn’t agree with.
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 RAC 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
In my opinion, this is not a radical decision. The implications are, however, that a company should 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 may also be challenged as discriminatory.
As usual, obtaining expert advice (e.g., from an industrial psychologist) in this regard as to whether a particular test would constitute a medical examination or not is recommended.
The case is Karraker v. Rent-A-Center, Inc., No. 04-2881 (decided June 15, 2005).
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I just jumped on in my role as editor and added the link to the full case opinion. It made me laugh. It starts out with this:
“To prove their worth prior to the
annual college draft, NFL 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, answering questions such as:
Assume the first two statements are true. The boy plays football. All football players wear helmets. The boy wears a helmet.
Is the final statement:
True?
False?
Not certain
They are also asked questions like “What is the ninth month of the year?” See Richard Hoffer, “Get Smart!”, Sports Illustrated (Sept. 5, 1994).
This case involves a battery of nonphysical tests similar to some of those given by NFL teams, though the employees here applied for less glamorous, and far less well-paying, positions.
Skip ahead to this delightfully reasoned and expressed ridicule of the company position:
[T]his case largely turns on whether the MMPI test is designed to reveal a mental impairment. RAC argues that, as it used the MMPI, the test only measured personality traits.
For example, 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’tpromote disgruntled Cubs fans?), the logic behind it doesn’t seem to add up, either.
Repeating the claim at oral argument, RAC argued that the MMPI merely tested a “state of mood” and 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?
We see two possibilities: either the MMPI was a very poor predictor of an applicant’s potential as a manager
(which might be one reason it is no longer used by RAC), or it actually was designed to measure more than just an
applicant’s mood on a given day.
Needless to say, the court went with the latter possibility.
Obtaining expert advice from a psychologist is also a good idea because of invalid testing. The MMPI and MMPI-2 have repeatedly been shown to be invalid for employment testing, and there is question about their overall general validity. The original MMPI was normed to a group of white middle-aged farmers residing in Minnesota, which is not a representative sample of the population as a whole. The MMPI-2 attempted to correct some of this but still shows demonstrable bias against certain protected groups.