August 14, 2018
What are the legal risks of administering psychological tests to prospective employees?
Back in 1988, the federal government banned the use of polygraphs (lie detectors) in the workplace as improper invasions of privacy, except in narrow contexts such as theft investigations. [Employee Polygraph Protection Act of 1988; 19 U.S.C. §§ 2001 – 2009.] Later, the Americans with Disabilities Act of 1990 (ADA) limited an employer’s ability to require applicants and employees to take medical exams. [42 U.S.C. § 12112(d)(3).]
Yet today, a growing number of companies use psychological testing as part of their hiring and promotion process. Popular psychological tests include the Myers-Briggs Type Indicator, the Minnesota Multiphasic Personality Inventory (MMPI), and honesty or integrity tests. Reasons for this include efforts to prevent embezzlement and security breaches, as well as lawsuits for negligent hiring against businesses brought over crimes committed by their employees, such as thefts or assaults.
Employers should be aware that such psychological tests may run afoul of the ADA if the tests are designed to reveal an impairment of the employee’s physical or mental health. [42 U.S.C. §§ 12112(b)(5) – (b)(7) and 12112(d)(1) – (4).] Employee applicant tests may also violate Title VII of the Civil Rights Act if they are (1) used to intentionally discriminate against protected groups, or (2) have an adverse effect on protected groups while not being job-related or consistent with business necessity. [42 U.S.C. § 2000e-2(h).]
The ADA prohibits employers from using medical exams as pre-employment tests before an offer of employment is made. Any medical exams that are administered must be job-related and must not screen out, or have a tendency to screen out, people with disabilities. Additionally, employers must give the tests to all similarly situated persons, and must keep the results confidential. Because the ADA’s definition of “disability” includes mental impairments, pre-employment psychological testing can, under certain circumstances, constitute a “medical exam” for purposes of the ADA.
The federal court has affirmed that the MMPI exam (mentioned above) is a “medical exam” for ADA purposes because it was designed, at least in part, to identify mental disorders and impairments. [Karraker v. Rent-A-Center Inc. (7th Cir. 2005) 411 F.3d 831.] One purpose of the MMPI is medical: to serve as a clinical tool for measuring traits such as depression, hysteria, paranoia, and mania. Employers also use the test for vocational (non-medical) purposes to assess how well an applicant’s personality would mesh with job responsibilities and company culture.
In Karraker, supra, three employees applying for management positions were given a personality test that included questions from the MMPI. A job candidate could be disqualified solely on the basis of the personality test results. The employer took affirmative steps, suggested by the Equal Employment Opportunity Commission, to ensure the test would not be classified as a medical exam under the ADA. The test was not administered or interpreted by a psychologist. The employer also made sure to use the test’s vocational protocol rather than its medical protocol. In spite of these precautions, the Seventh Circuit Court of Appeals held that the test was a medical exam for ADA purposes because the MMPI questions it used were designed, at least in part, to reveal mental illness. [Karraker v. Rent-A-Center Inc., supra, 411 F.3d at 886.]
The California Court of Appeals held that portions of a personality test administered by Target Stores to prospective security guards violated both their constitutional right to privacy and California’s anti-discrimination laws. [Soroka v. Dayton Hudson (1991) 18 Cal.App.4th 1200, 1208-1217.] The Soroka Court noted that some of the test’s questions asked about applicants’ sexual preferences and religious beliefs. To justify such questions, Target needed to show a compelling interest that would be served by the questions, and also show that the questions served a job-related purpose. Target failed to do so, arguing unsuccessfully that the questions were aimed at measuring the applicants’ emotional stability. The Court found that Target did not show a connection between sexual preference or religious belief and emotional stability. Therefore, the Court held, the questions were discriminatory and not job-related.
What can employers do to limit their legal risks when administering psychological tests?
Limit the importance of the test: Do not use a psychological test as the sole basis for your hiring and promotion decisions.
Avoid tests that are administered or interpreted by clinical professionals.
Avoid tests that can be used to detect mental disorders or impairments.
Be consistent: Administer the test to all candidates in similar circumstances.
Protect confidentiality: Do not disclose test answers or results without the candidate’s consent.
Ensure that psychological tests are job-related and/or can be justified by business necessity.
Ensure that psychological tests are statistically valid: Avoid tests that are ethnically or culturally biased, or have a disproportionate impact on the disabled, women, minorities, particular religions, or those over 40 years of age.
Consult an experienced employment attorney, who can alert you to potential problems and refine your employee selection policies and procedures to minimize your risk exposure.
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.