From What Distance is Discrimination Acceptable, Redux

There is a vicious cycle of associated with poverty and mental illness. It is a self-reinforcing circle where poverty is linked to greater incidence of mental illness, and mental illness is linked to a greater likelihood of living in poverty.

A 2005 study looked at the health records of 34,000 patients who were hospitalized at least twice for mental illness over a seven-year period. The study looked at whether or not these patients had “drifted down” to less affluent ZIP codes following their first hospitalization. The study found that poverty — acting through economic stressors such as unemployment and lack of affordable housing — is more likely to precede most mental illness.

A prior post discussed location-based "insights" provided by employment assessment companies like Kenexa and Evolv. These companies believe that a greater distance from the jobsite, lengthier commute times and more frequent household moves should weigh against - or even exclude - job applicants from consideration for employment. As the prior post noted, these insights are generalized correlations, they say nothing about any particular applicant.

Employers utilizing these location-based "insights" screen out qualified applicants solely because they live (or don't live) in certain areas. Not only do employers do a disservice to themselves by eliminating qualified persons from consideration for employment, the use of these insights discriminates against the poor, who are disproportionately represented by African-Americans and Hispanics. As shown in the graphic to the right, Blacks are more than two-and-a-half times as likely as Whites to live below the federal poverty level. Similarly, Hispanics are twice as likely as Asians to live below the federal poverty level. The federal poverty level in 2010 for an individual was $10,830 and for a family of four was $22,050. The graphic is taken from a 2011 report issued by the National Center for Health Statistics.

This post reprises certain information from the prior post and then discusses how the use of the location-based insights also discriminates against persons with mental illness.

Reprising "From What Distance is Discrimination Acceptable?"

The assessment company Kenexa, purchased by IBM in December 2012, will test approximately 40 million applicants this year for hundreds of clients. Kenexa believes that a lengthy commute raises the risk of attrition in call-center and fast-food jobs. It asks applicants for call-center and fast-food jobs to describe their commute by picking options ranging from "less than 10 minutes" to "more than 45 minutes."

The longer the commute, the lower their recommendation score for these jobs, says Jeff Weekley, who oversees the assessments. Applicants also can be asked how long they have been at their current address and how many times they have moved. People who move more frequently "have a higher likelihood of leaving," Mr. Weekley said.

As a consequence, Kenexa clients will pass over qualified applicants solely because they live (or don't live) in certain areas. Not only does the employer do a disservice to itself and the applicant, it increases the risk of employment litigation, with its consequent costs. 

Distance From Jobsite

A New York Time article from earlier this year, "In Climbing Income Ladder, Location Matters," reads, in part:

Stacey Calvin spends almost as much time commuting to her job — on a bus, two trains and another bus — as she does working part-time at a day care center.  ...

Her nearly four-hour round-trip [job commute] stems largely from the economic geography of Atlanta, which is one of America’s most affluent metropolitan areas yet also one of the most physically divided by income. The low-income neighborhoods here often stretch for miles, with rows of houses and low-slung apartments, interrupted by the occasional strip mall, and lacking much in the way of good-paying jobs. 

This geography appears to play a major role in making Atlanta one of the metropolitan areas where it is most difficult for lower-income households to rise into the middle class and beyond, according to a new study that other researchers are calling the most detailed portrait yet of income mobility in the United States.

The dearth of good-paying jobs in low-income neighborhoods means that residents of those neighborhoods have a longer commute. 

Housing Mobility

As shown in the table below, poor and near-poor families tend to move much more frequently than their higher income neighbors and the general population.

According to a 2011 study by the Center for Public Housing, entitled "Should I Stay or Should I Go? Exploring the Effects of Housing Instability and Mobility on Children," a wide range of often complex forces appears to drive frequent mobility, and residential instability in general — the formation and dissolution of households, an inability to afford one’s housing costs, the loss of employment, the lack of a safety net, lack of quality housing or a safer neighborhood.

Correlation Is Not Causation

When two variables, A and B, are found to be correlated, there are several possibilities:

1. A causes B
2. B causes A
3. A causes B at the same time as B causes A (a self-reinforcing system)
4. Some third factor causes both A and B

The correlation is simple coincidence. It is wrong to assume any of these possibilities.

According to Kenexa and Evolv, however, the correlation between (A) persons who move more frequently and (B) shorter job tenure is that A causes B. However, a 2011 study by the Center of Public Housing demonstrates that it may well be that (B) shorter job tenure causes (A) persons to move. As shown in the table below, taken from the 2011 study, 76% of involuntary moves were a result of job loss. The second highest factor precipitating involuntary moves is mental health problems.

Socioeconomic Status and Mental Illness

One of the most consistently replicated findings in the social sciences has been the negative relationship of socioeconomic status (SES) with mental illness: The lower the SES of an individual is, the higher is his or her risk of mental illness.

As an example, for the period from 2005-2010, the Centers for Disease Control found that among adults 20–44 and 45–64 years of age, depression was five times as high for those below poverty, about three times as high for those with family income at 100%–199% of poverty, and 60% higher for those with income at 200%–399% of poverty compared with those at 400% or more of the poverty level. 

As noted above, the federal poverty level in 2010 for an individual was $10,830 and for a family of four was $22,050.

People who live in poverty are at increased risk of mental illness compared to their economically stable peers. Their lives are stressful. They are both witness to and victims of more violence and trauma than those who are reasonably well off, and they are at high risk of poor general health and malnutrition. Similarly, when people are mentally ill, they are at increased risk of becoming and/or staying poor. They have higher health costs, difficulty getting and retaining jobs, and suffer the social stigma and isolation of mental illness.

Thousands of employers utilize pre-employment assessments provided by companies like Kenexa and Evolv, whose location-based "insights" discriminate against lower-income persons. According to a 2001 study, lower income Americans had a higher prevalence of 1 or more psychiatric disorders (51% vs 28%): mood disorders (33% vs 16%), anxiety disorders (36% vs 11%), and eating disorders (10% vs 7%). Consequently, pre-employment assessments using these location-based "insights" violate the Americans with Disabilities Act by illegally screening out persons with mental illness.

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What Are the Issues?

When people apply for a job online these days, they are increasingly being asked to take personality tests even before they exchange an e-mail or have a phone interview with a hiring manager. Such tests are being used by companies as a way to prune the job applications they receive.

The problem is that these assessments may also be used to illegally screen out job seekers with mental disabilities. 

As a result, too many people living with mental disabilities that are willing and able to work remain unemployed or underemployed. Not only does the United States economy experience the indirect loss in productivity and tax revenue arising from the unemployment and underemployment of persons with mental disabilities, there is a direct, rising and material cost to the U.S. Treasury associated with income support payments, like Social Security Disability Insurance and Supplementary Support Income. (Please see the post Costing Taxpayers Billions of Dollars Each Year).

Who are these persons with mental disabilities?

They are our sons and daughters, our mothers and fathers, our friends and colleagues. Mental illness is no respecter of age, race, gender, faith, sexual orientation, occupation, social position, education or wealth. Anyone can develop a mental illness.

They are:

• A soldier returning from Afghanistan looking to enter the civilian workforce, who suffers from PTSD as a result of combat
• A mother of a young child looking to support her family, who is recovering from post-partum depression
• A recent college graduate looking to start his career, who has been diagnosed with bipolar disorder

They are us. An estimated 26.2% of Americans ages 18 and older - about one in four adults - suffer from a diagnosable mental disorder in a given year.

At some point during his or her lifetime, the average American adult has a 28.8% chance of developing an anxiety disorders, a 24.8% chance of developing an impulse-control order, and a 20.8% chance of developing a mood disorder.

How widespread is pre-employment testing?

There are hundreds of companies that offer pre-employment assessments and/or implementation services to employers. One of the larger assessment companies, Kenexa (recently acquired by IBM) assesses more than 20 million persons a year. Other large assessment companies include Kronos (through its acquisition of Unicru), Oracle (through its acquisition of Taleo), SAP (through its acquisition of Success Factors) and SHL.

A mid-sized company in the retail business may have 50,000 assessments per month or 600,000 per year. Large “big box” employers and fast food companies may have 1-2 million assessments per year. 

Personality tests are “growing like wildfire,” said Josh Bersin, president and CEO of Bersin & Associates, an Oakland, Calif., research firm. Bersin estimated that this kind of pre-hire testing has been growing by as much as 20 percent annually in the past few years. Industries that are flooded with resumes such as retail, food service and hospitality are among the ones that use such tests most often, he said.

“A lot of work has been done over the years on how personality tests impact gender, race or age bias, but I don’t know if anyone has done enough research yet on mental disabilities,” says Bersin, “the medical community is starting to redefine what these diagnoses are, and the laws may not have caught up.”

Are pre-employment assessments legal?

The policy of the Equal Employment Opportunity Commission (EEOC) is that pre-employment testing, including personality testing, is acceptable as long as the test is not a "medical examination" as defined by the Americans with Disabilities Act (ADA).

EEOC guidance provides a seven-factor test for analyzing whether a test or procedure qualifies as a “medical examination,” including whether the test is designed to reveal an impairment of physical or mental health such as those listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

According to the guidance, the presence of any one of the seven factors is enough to support a finding that the test is a medical examination. 

How do the assessments screen out persons with mental disabilities?

A key component of the assessment process is a computer-administered personality test based on the five factor model of personality, or FFM, a coordinate system that maps which personality traits go together in people’s descriptions or ratings of one another. the FFM describes personality in terms of five broad factors:

• Openness: inventive and curious vs. consistent and cautious. 
• Conscientiousness: efficient and organized vs. easy-going and careless. 
• Extraversion: outgoing and energetic vs. solitary and reserved.
• Agreeableness: friendly and compassionate vs. cold and unkind
• Neuroticism: sensitive and nervous vs. secure and confident

The majority of personality disorders are characterized by significant positive relations with Neuroticism and significant negative relations with Extraversion, Agreeableness and Conscientiousness. Consequently, applicants who take the Assessment and have low scores on Openness, Conscientiousness, Extraversion and Agreeableness and high scores on Neuroticism are likely not to be offered employment (or even interviewed).

Based on an applicant’s responses to the online test, the assessment categorizes the applicant as red, green or yellow. In many cases, green gets an applicant an automatic follow-up interview. Red is usually an automatic discard.  A red or yellow score on the Assessment does not necessarily mean that an applicant has a mental disability, but a person who has a mental disability is likely to receive a red or yellow score on the assessment and will be denied consideration for employment.

Some have argued that assessments are designed to measure “normal” personalities and/or “stable” personality traits. That argument fails because, as a dimensional model, the FFM determines each applicant’s position along the axis of each of the five traits. Those five traits are the common measuring rod for all persons, including persons with mental disabilities. By its design and structure, an assessment based on the FFM measures all aspects of a personality, including both normal and abnormal personality traits.

For more information, please see the ADA, FFM and DSM post.

Are the tests designed to intentionally screen out persons with mental disabilities?

Perhaps.

One assessment company, Clearfit, lists “27.2 days/yr. lost productivity for depressed workers” as one of the impacts to employers if personality is not taken into account in the hiring process.

In any event, courts have held that the intent is irrelevant. What is relevant is that the use of the FFM as the basis of an assessment means that the assessment was designed to reveal mental impairments by identifying and rejecting those applicants who do not fall within the “green” parameters of the five traits. 

Are there any studies addressing the impact of assessment tests on persons with mental disabilities?

There has been no public disclosure of any studies addressing the impact of FFM-based assessments on persons with mental disabilities. One prominent assessment company, Kronos, has claimed in a court document, that there is “no known method … to ascertain adverse impact against the entire generic category of disabilities.” Kronos goes on to claim ”that “the diverse nature of disabilities (e.g., blindness, paraplegia, deafness, severe mental illness) makes an analysis of a selection device’s adverse impact on “people who have disabilities” impossible.” Such claims are unsupportable.

As stated in a 2004 article published by the the Journal of Rehabilitation Administration, “studies of sub-groups, such as individuals with mental illnesses or cognitive impairments could be conducted to determine the potential, and perhaps likelihood for, pre-employment test results unfairly penalizing these individuals in the employee selection and hiring stages …” 

Such studies are, in fact, mandated. In a 1975 decision, the Supreme Court addressed a case in which an employer implemented a test on the theory that a certain verbal intelligence was called for by the increasing sophistication of the plant’s operations. The Court held that a test should be validated on people as similar as possible to those to whom it will be administered. The Court further stated that differential studies should be conducted on minority groups wherever feasible.

Tests Discriminate Against New and Expectant Mothers

Perinatal Mood Disorders

Perinatal Mood Disorders (PMD) are a set of disorders that can occur anytime during pregnancy and the first year postpartum and include depression, anxiety, panic, Obsessive-Compulsive  Disorder, PTSD and Postpartum Psychosis. Over  800,000 cases are reported in the U.S. each year, making PMD the most common maternal health complication.

Every woman is at risk regardless of age, race or financial status.While it is impossible to predict who will develop PMD, certain risk factors have been identified, including:

• Previous episode of PMD
• Depression during pregnancy
• History of depression or bipolar disorder
• Recent stressful life events
• Inadequate social supports
• Marital problem

Without appropriate intervention, PMD can have long term and adverse implications for both the mother and the child.

Employment and Postpartum Depression

In a study published in 2010, the prevalence of postpartum depression was 13.8%. The study found that employment was significantly associated with a reduced risk of postpartum depression: When employment was classified into 2 categories, full-time, but not part-time, employment was independently inversely associated with postpartum depression - i.e., employed mothers were less likely to experience postpartum depression.

Depression is positively associated with poverty and unemployment, as these are significant stressors

Illegally Screening Out New and Expectant Mothers from Employment Consideration

As noted in the ADA, FFM and DSM post, pre-employment personality tests utilize the five-factor  (openness, conscientiousness, extraversion, agreeableness, neuroticism), model of personality to create one or more profiles of a "model" employee. That profile usually specifies low levels of neuroticism and higher levels of openness, conscientiousness, extraversion and agreeableness.

Applicants with mental illnesses, like new or expectant mothers experiencing PMD, tend to have a personality profile that conflicts with one or more elements of the "model" employee profile - higher neuroticism and/or lower openness, conscientiousness, extraversion and agreeableness. 

Thus, an FFM-based assessment illegally screen out new and expectant mothers experiencing PMD from employment consideration. As a consequence, these structural barriers to employment create significant challenges for women experiencing PMD, including:

• Limiting access to healthcare resources for the women and their children
• Creating additional stressful life events
• Removing access to social supports provided by a work environment

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Employment Assessments Are Designed to Reveal an Impairment

Employers and assessment providers have tried to distinguish their assessments by arguing that their assessments were designed to measure “normal” personalities and/or “stable” personality traits. That argument fails because the FFM measures both sides of the same coin. As noted in the ADA, FFM and DSM post, the five-factor model of personality is widely accepted as representing the higher-order structure of both normal and abnormal personality traits.

By its design, a test that measures so-called “normal” personalities and seeks to identify individuals with “stable personality traits” screens out (or reveals) persons who may not possess “normal” personalities and/or “stable” personality traits – persons like military veterans suffering from post-traumatic stress disorder, college students diagnosed with bipolar disorder and mothers with post-partum depression – persons whom the ADA was enacted (and amended) to protect.



The issue is whether the test is “designed to reveal” an impairment of physical or mental health. For example, one may devise a process to separate white beads from a container of red, white and blue beads. While the intent is to find the white beads, the process is designed to reveal red and blue beads by distinguishing them from white beads.

Similarly, an employment assessment is designed to reveal a person with a mental impairment (a red or blue bead) by distinguishing that person from a “normal” person (a white bead).

In the words of the Karraker court (please see the Courts Find Tests to be Illegal post), an employment assessment utilizing an FFM-based model is “designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability” and, as such, “is best categorized as a medical examination.”

Some assessment companies make it very clear that their tests are designed to identify and exclude persons with mental illnesses. Clearfit advertises itself as a “hiring tool for finding job applicants and predicting who will succeed.” According to the company’s website, “each applicant is scored against a Success Profile: a combination of personality and motivation traits that predict success in a particular role.”

And what happens if personality is not taken into account? According to Clearfit, one of the consequences is “27.2 days/yr. lost productivity for depressed workers.” Thus making it clear that the personality assessment should be used to eliminate from employment consideration those persons suffering from a mental illness, like mothers with post-partum depression.

A screenshot from the Clearfit webpage is set out below:



Mental Illness and Issues of Employment

How significant is unemployment and underemployment of persons with mental illness?

According to the National Alliance on Mental Illness (NAMI), the unemployment rate among adults with serious mental illness has been as high as 90%, the highest level of any group of people with disabilities.

According to a 2008 report, 16.5% of the population aged 21 to 64 had a disability and only 45.6% of this group was employed. 

According to the chart below from a 2010 Harris Interactive survey, the employment gap between people with and without disabilities remains significant.

An article published in 2010, shows that during the period between October 2008 and June 2010, the proportion of employed U.S. workers identified as having disabilities declined by 9%, while there was no statistically significant change in the number of labor force participants without disabilities. 

According to a 2006 article, one in three mental health consumers in the United States report being turned down for a job once their psychiatric status became known.

Is there bias against persons with mental illness?

According to that 2006 article:

• Surveys of U.S. employers show that half of them are reluctant to hire someone with past psychiatric history or currently undergoing treatment for depression.
• Approximately 70% are reluctant to hire someone currently taking antipsychotic medication. 
• Half of U.S. employers would rarely employ someone with a psychiatric disability and almost a quarter would dismiss someone who had not disclosed a mental illness.
• People with mental disorders identify employment discrimination as one of their most frequent stigma experiences. Compared with individuals with physical disabilities, twice as many people with mental disabilities (the majority) expect to experience employment-related stigma. 

How prevalent is mental illness?

According to a report by the National Institute of Mental Health, an estimated 26.2% of Americans ages 18 and older suffer from one or more brain or behavior disorders in a given year. 

The Brain and Behavior Research Foundation reports that out of the 10 leading causes of disability identified and tracked in the United States; four are brain and behavior disorders: major depression, bipolar disorder, schizophrenia and obsessive-compulsive disorder.

More information on mental illness may be obtained from the National Alliance on Mental Illness, the National Institute of Mental Health, the Brain and Behavior Research Foundation, and the Depression and Bipolar Support Alliance.

What are the costs of unemployment and underemployment of the mentally ill?

Not only does the United States economy experience the indirect loss in productivity arising from the unemployment and underemployment of persons with mental illness, there is a direct, rising and material cost to the U.S. Treasury associated with Social Security Disability Insurance (SSDI) payments to those persons.

According to a 2011 paper, between 1989 and 2009, the share of adults receiving SSDI benefits doubled, from 2.3 to 4.6 percent of Americans ages 25-64. In the same interval, cash payments to SSDI recipients (adjusted for inflation) tripled to $121 billion.  

One of the most common and rapidly expanding diagnoses for individuals receiving SSDI awards is mental illness, which comprised more than 20 percent of SSDI awards over the past decade.  A 2005 study in the New England Journal of Medicine reports that the prevalence of mental disorders in the U.S. population was unchanged between 1990 and 2003 . In the same interval, the rate of treatment of mental illness substantially increased—which in turn should have contributed to improved work-readiness among individuals coping with mental illness.

Over the past twenty years there has been an exponential rise in the number of pre-employment assessments administered to applicants, driven in large part by the increase in the number of applications per job opening arising as a consequence of online postings of job opportunities. The pre-employment assessments, intentionally or not, discriminate against applicants with mental disabilities in the hiring process. As a result, too many people living with mental illness that are willing and able to work remain unemployed or underemployed.