Personality Tests and The ADA: A Risky Business

Originally published July 14, 2005

The Americans with Disabilities Act (ADA) states that covered employers "shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." 42 U.S.C. § 12112(d)(2). The Act specifically prohibits the use of pre-employment medical tests, prohibits the use of medical tests generally unless they are job-related and consistent with business necessity, and prohibits tests that tend to screen out disabled individuals.

Employers often use personality tests to determine whether job applicants have the traits desired of employees in certain positions. The difficulty under the ADA is determining whether such personality tests truly assess an applicant’s ability to succeed in the position or whether the personality test actually is a medical exam and, as such, prohibited by the ADA. Personality tests which are more akin to psychological exams often run afoul of the ADA if they have the effect of screening out individuals with mental disabilities. With increasing frequency, job applicants denied a position because of their scores on personality tests are challenging such tests as violations of the ADA. The Equal Employment Opportunity Commission similarly has heightened its scrutiny of employment exams.

In one of the few published decisions exploring this issue, the Seventh Circuit Court of Appeals recently determined that a personality test, regardless of its intended purpose, violated the ADA because it improperly elicited disability-related information from job applicants. Karraker v. Rent-A-Center, Inc., 2005 WL 1389443 (7th Cir. June 14, 2005).

Rent-A-Center, the employer, required employees to pass the APT Management Trainee-Executive Profile in order to be promoted to upper-level management positions. The plaintiffs in the case were three brothers employed by Rent-A-Center who did not receive promotions based on their scores on the APT Test.

The APT Test consists of nine separate tests that measure math and language skills, interests, and personality traits. These include 502 questions from the Minnesota Multiphasic Personality Inventory (MMPI), which the company claimed measured personality traits. However, as the court explained in its decision, the MMPI does not just assess the relevant managerial traits of an applicant, but also determines where the applicant falls on scales measuring such "traits" as depression, hypochondriasis, hysteria, paranoia, and mania. High scores on certain of the scales could contribute to diagnoses of various psychiatric disorders.

The plaintiffs brought a class action challenging Rent-A-Center’s use of the MMPI and claiming that it constituted an impermissible medical exam under the ADA.

The Seventh Circuit agreed with the plaintiffs that the MMPI constituted an impermissible medical exam because it was designed to reveal mental impairments. The court disregarded the company’s claims that it did not use the test to reveal mental illness, but only to measure personality traits desired of its management employees, and that a psychologist did not interpret the test results. The court explained that the MMPI "is designed, at least in part, to reveal mental illness" because applicants with such illnesses likely would be weeded out by their answers to certain questions, such as those that test feelings of depression. Finally, the court concluded that, because the test may reveal mental illness and "has the effect of hurting the employment prospects of one with a mental disability, we think the MMPI is best categorized as a medical examination," and, thus, its use by Rent-A-Center in this context violated the ADA.

• Because the EEOC and the courts have heightened their scrutiny of personality tests, employers must do the same. Employers should review any pre-employment exams (whether administered to new job applicants or current employees who are internal applicants) to determine whether any component of the exam is a personality test and whether any part of the test can be deemed to contain questions that might elicit information regarding an applicant’s possible mental illness.
• Employers should ensure that any personality tests are job related and only measure the applicant’s ability to perform the job at issue. All tests used should be validated to ensure they meet these fundamental requirements. Companies that provide or administer the tests should be willing to provide validation studies if they have already conducted them. Any testing company that is unwilling or unable to provide evidence of validation studies should be viewed as suspect.
• The credentials of any testing company should be closely scrutinized. Also, ask the testing company whether the test it provides has ever been subject to a legal challenge, and then independently confirm the result of that challenge.
• Employers should consider whether any personality test being used truly assists in determining who will be successful in a position, and ask themselves whether the test is merely being used as a crutch to support an otherwise difficult decision.

This article is intended to provide information on recent legal developments. It should not be construed as legal advice or legal opinion on specific facts. Pursuant to applicable Rules of Professional Conduct, it may constitute advertising.

This article is intended to provide information on recent legal developments. It should not be construed as legal advice or legal opinion on specific facts. Pursuant to applicable Rules of Professional Conduct, it may constitute advertising.