Saturday, July 20, 2013

Courts Find Tests to be Illegal

In Karraker v. Rent-A-Center, a group of current and former employees filed a class action alleging that the employer’s policy requiring employees seeking management positions to take the Minnesota Multiphasic Personality Inventory (MMPI) violated the ADA. The plaintiffs alleged that the MMPI could identify conditions such as depression, paranoia, schizoid tendencies and mania.

The court found that even if the employer did not use the test to remove applicants with mental disorders from consideration, the use of the test likely had that effect. The court recognized that a bad score on a test did not necessarily mean that a person had a mental disorder, but a person who does have a mental disorder is likely to score badly on the test and lose the opportunity to get the position. 

The court held that because the MMPI was “designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability … the MMPI is best categorized as a medical examination.”

While employers and testing companies try to draw a distinction between the MMPI and the FFM, it is a distinction without a difference. Studies have shown that correlations between the MMPI and FFM demonstrated meaningful relations between the two sets of constructs. Both instruments showed substantial stability over six months, and both were significant and substantial predictors of symptom counts for most personality disorders. 

On August 22, 2012, in Kroll v. White Lake Ambulance Authority, the Sixth Circuit Court of Appeals held that psychological counseling is a medical examination under the ADA. In an extremely detailed review of the available guidance and case law,the court determined that, under the criteria set forth by the U.S. Equal Employment Opportunity Commission (EEOC) for analyzing a test or procedure (see “EEOC Enforcement Guidance” in the ADA, FFM and DSM post), a psychological test designed to reveal mental illness or to diagnose mental health issues is a “medical examination” under the ADA because, in the court’s words, the “uncovering of mental-health defects at an employer’s direction is the precise harm that [the ADA] is designed to prevent.”

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