August 10, 2022
Donald J. Walsh
Americans with disabilities face barriers to joining and succeeding in the workforce which are not limited to inaccessible physical structures; they also include attitudinal barriers resulting from unfounded stereotypes and prejudices. Offering protection against those barriers, the Americans with Disabilities Act (“ADA”) prohibits medical examinations, including psychological examinations, aimed at uncovering disabilities except in limited circumstances (e.g., law enforcement). Although many private employers seek to implement such tests to measure potential success, employees have succeeded in their legal challenges to psychological testing.
In accordance with the ADA, an employer may only ask about an applicant’s ability to perform job-related functions and not inquire whether the applicant has a disability. The Equal Employment Opportunity Commission (“EEOC”) guidelines state that psychological tests “designed to identify a mental disorder or impairment” qualify as medical examinations, but psychological tests “that measure personality traits such as honesty, preferences, and habits” do not. Those guidelines identify that the controlling factors are whether the test is: (1) administered and interpreted by a health care professional or done in a health care setting; (2) designed to reveal an impairment of physical or mental health; (3) invasive; and (4) measuring an employee’s performance of a task or measuring physiological responses to performing the task.
In Karraker v. Rent-A-Center, Inc., (7th Cir. 2005), the court held that the employer’s policy of requiring employees seeking management positions to take a psychological test violated the ADA because the test was designed to reveal mental illness which had the effect of hurting employment prospects for those suffering from mental disabilities. The court also questioned the usefulness of the test as a predictor of the subject’s potential as a manager. Examining the factors that the EEOC used, it held that any one factor may be enough to determine that a procedure or test is a medical examination. The court concluded that the test used was designed, at least in part, to reveal mental illness since elevated scores could be used in diagnoses of certain psychiatric disorders.
In Roberts v. Rayonier, Inc., (M.D. Fla. 2005), the court found that a company which required examination of its executives for entrance and promotion purposes may have been a medical examination under the ADA. The court indicated that a jury needed to decide whether the assessment tool would lead to identifying a mental disorder or whether it only analyzed the strengths and weaknesses of a candidate for employment or promotion. The conflicting expert testimony was sufficient to create an issue of material fact and, after untold attorney’s fees were incurred, sent the matter for trial. Wisely, the matter resolved before a final determination was made.
Before deciding on the use of a perceived personality test to assess applicants and employees, make sure you understand the test, its goals and any unintended parallels between the test and a medical examination which may disclose or alert employers to mental disabilities or impairments. Although finding successful long-term employees is a welcome and positive goal, vetting for possible illnesses or disabilities is illegal and unnecessary.