Labor Logic

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John D. Finerty, Jr.

Employers use pre-employment knowledge and personality tests regularly. When hiring for management level positions, especially those in positions of trust such as money handlers or auditors, employers want to weed out applicants prone to dishonesty or who otherwise may prove unreliable.

But when a personality test asks questions that could reveal a mental disability, such as depression, the personality test goes too far, according to a recent case from the United States Court of Appeals for the Seventh Circuit.

In Karraker v. Rent-A-Center, Inc., Case No. 04-2881 (Jun. 14, 2005), the Court held that the Minnesota Multi-Phasic Personality Inventory (MMPI) was a "medical examination" under the ADA. Its use was, therefore, illegal as a pre-employment test that screened out, or had the effect of screening out, job applicants with disabilities. This is the first case in which a federal circuit court addressed the permissible uses of MMPI as a pre-employment test. The case provides a useful analysis of many hiring issues that arise under the ADA.

The Minnesota Multi-Phasic Inventory

The MMPI is the most widely used test of adult psychopathology. It was first published in 1942 by Starke R. Hathoway, Ph.D. and J.C. McKinley, M.D., who were on the faculty of the University of Minnesota Hospitals. Today, the test may be administered by traditional paper and pencil testing, or by computer; it is also available in audio or CD versions and has been translated into 7 different languages.

The primary use of the MMPI is to assess symptoms of social and personal maladjustment. The test can be adjusted, and is in fact widely used, to identify job candidates for high risk public safety positions. It is also used in the criminal justice and correctional system to classify, treat and manage inmates. Its primary use, however, is by clinicians to assist in diagnosing mental disorders and select the appropriate treatment.

The ADA Bars Pre-Job Offer "Medical Examinations"

The Americans With Disabilities Act or ADA became law on July 26, 1990. The purpose of the law was to remove barriers to employment for disabled workers. But the disabled face many different types of barriers: those in wheelchairs find stairs, desks, cramped hallways in offices and standard store counter heights to be impediments; the lack of training materials, technical manuals and employee handbooks in audio or Braille formats impede the blind. Those with mental disabilities also face barriers such as employer attitudes toward mental illness. Thus, the ADA covers both physical and mental disabilities.

The ADA prohibits the use of pre-employment medical examinations. That is, employers cannot inquire into applicants’ medical conditions before making a job offer.

Employers may, however, conduct post-job offer medical examinations if it requires all employees to take the same examination and the results are confidential. Post job offer medical examination results may be used to make employment decisions to the extent they are consistent with a business necessity.

Karraker v. Rent-A-Center

The Karraker brothers brought a class action against Rent-A-Center alleging violations of the ADA after the three brothers were denied promotions because they failed the APT Management Trainee-Executive Profile. The APT was a series of 9 tests designed to measure such things as math and language skills as well as personal interests and personality traits.

Part of the test was taken from the Minnesota Multi-Phasic Personality Inventory. Rent-A-Center argued the MMPI portion of the test measured simply whether someone works well in groups or is comfortable in a fast-paced office. The court noted, however, that the MMPI measures traits such as depression, hypochondrias, hysteria, paranoia and mania. Elevated scores on portions of the MMPI can also be used to diagnosis psychiatric disorders.

Rent-A-Center, however, took the position that the MMPI was a personality test permitted by the Equal Employment Opportunity Commission’s enforcement guidance, not a prohibited medical examination (The MMPI has 2 sets of criteria — one a clinical set and one non-clinical). Rent-A-Center, thus, asked the court to find the MMPI was not a medical examination and, thus, not regulated by the ADA. In making that request, however, Rent-A-Center conceded a key point.

The plaintiffs took the position that the MMPI was being used as a pre-employment medical examination and was illegal as a matter of law. The court noted Rent-A-Center could have argued that the test was an evaluation tool used during employment rather than a pre-employment screening device.

Performance tests and evaluations that are "job related and consistent with business necessity" are legal under the ADA. In other words, Rent-A-Center could have taken the position that an employee’s application for a promotion merely served as the occasion to administer the test and that the employer used it merely as a tool to assign the right employee to the right job.

Conceivably, under that theory, the MMPI would not simply screen out unsuitable employees, but it might also reveal the exceptional employee misassigned to lower grade position. Rent-A-Center, however, gave up that argument by agreeing with the plaintiffs that the MMPI was a pre-employment test.

Analysis

The court held Rent-A-Center’s use of the MMPI was illegal because it measured traits that are not relevant to promotion. The court noted that psychological tests designed to identify a medical disorder or impairment qualify as medical examinations, but psychological tests that measure personal traits such as honesty, preferences and habits do not. Rent-A-Center’s use of the MMPI could reveal mental disorders or impairments such as depression.

Rent-A-Center’s explanation for this point, however, did not pass muster with the Court:

“RAC argues in its brief that the MMPI does not test whether an applicant is clinically depressed, only ‘the extent to which the test subject is experiencing the kinds of feelings of depression that everyone feels from time-to-time (e.g., when their favorite team loses the world series).’ Although that particular example seems odd to us (can an Illinois chain really fill its management positions if it won’t promote disgruntled Cubs’ fans?), the logic behind it doesn’t seem to add up, either. … [Rent-A-Center] suggested that an applicant might, for example, score high on the depression scale because he lost his keys that morning. But why would RAC care if an applicant lost his keys the morning of the MMPI or took the test the day after another Cubs’ loss? Would RAC really want to exclude an employee from consideration for a promotion because he happened to feel sad on the wrong day?”

Clearly, the court did not buy Rent-A-Center’s explanation for why measuring for mental impairments was a part of the test used to consider employees for promotion.

What? No baseball analogy?

Judge Terence T. Evans authored the Karraker decision. Judge Evans has used sports analogies on previous occasions, but he is most adept at baseball analogies. His opinion in Hunt’s Generator Committee v. Babcock & Wilcox Co., 863 F. Supp. 879 (E.D. Wis. 1994) is legend.

In Karraker, however, he opened the opinion by noting that National Football League teams "test aspiring professional football players’ ability to run, catch and throw. But that’s not all. In addition to the physical tests, a draft prospect also takes up to 15 personality and knowledge tests. …"

His reference to the NFL implies some question about the legality of the famed Wonderlic test. Prior to the spring NFL draft, college players work out at the NFL Combine in Indianapolis and take the Wonderlic test. The test is an IQ test of 50 questions. Fifty is a perfect score; ten is considered literacy.

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A good description of the Wonderlic test and the challenges it poses for employers was discussed in "Wonderlic results test both players and scouts in NFL" MILWAUKEE J. SENT. (Feb. 20, 2000). That article, and Paul Zimmerman’s book, "The New Thinking Man’s Guide To Pro Football" compares football players’ scores with those of employees in other professionals, such as chemists, computer programmers, news writers, salesmen, bank tellers and others.

With the exception of chemists, the results are surprisingly similar. In any event, the Wonderlic test is merely an IQ test; it is a shortened version of what many of us know to be problem solving tests from grade school or high school. As a basic IQ test, it should fall into the permissible category of knowledge or skill tests that are not governed by the ADA.

For more information on this case or for assistance in implementing ADA compliant employment tests, contact John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 225-8269 or on the Internet at [email protected].