Katz, Marshall & Banks partner Debra S. Katz and Ruth Eisenberg of Harmon, Curran, Spielberg & Eisenberg published an article in Legal Times entitled “Hiring Minds Want to Know: Increasingly Popular Psychological Testing of Job Applicants May Violate ADA.” The article, published on February 8, 1999, discussed how an employer's decision to conduct psychological texts on prospective employees may violate the Americans with Disabilities Act. The full-text of the article is available below.
Increasingly Popular Psychological Testing of Job Applicants May Violate ADA
By Ruth Eisenberg and Debra S. Katz
Download the PDF version here.
February 8, 1999
We were taught that if we go to the right law school, earn top grades, make law review, and land a judicial clerkship, the job we've always dreamed of is in the bag. What no one ever suggested it that the dream job might rest on how we answer questions on tests designed to assess our personality and behavioral traits. Whether we agree or disagree with statements such as "I have a good appetite." "I am easily awakened by noise." "I have never indulged in any unusual sexual practices." or "I have strange and peculiar thoughts" may play a significant role in our careers.
Sound frightening? These are just a few of the statements on the Minnesota Multiphasic Personality Inventory (MMPI), a standardized exam consisting of 567 statements with which the test-taker is asked to agree or disagree. The MMPI, along with other psychological tests, is increasingly being used by employers - including law firms (as The National Law Journal reported on Dec. 7, 1998) - to screen potential employees.
Employers say they are simply trying to ensure that the personality of a new employee "fits" with a particular position and with the company as a whole. The problem is that, while psychological tests may well reveal personality traits (such as whether a person is outgoing or trustworthy) some of these tests are meant to reveal much more. According to Dr. Steven Heidel, a member of the Occupational Psychiatry Committee of the American Psychiatric Association, the MMPI is designed to aid in the clinical diagnosis of mental disorders. And the use of the MMPI seems to be on the rise, particularly for jobs that are executive level or require attention to public safety.
Clearly, employers who utilize such tests could be in serious legal trouble. Psychological tests are particularly vulnerable to misinterpretation and misuse. The information revealed raises serious privacy concerns. Perhaps most important, the administering of psychological tests can very easily run afoul of the Americans With Disabilities Act.
The difficulties of psychological testing begin with how the tests are administered and the results interpreted. While some employers hire industrial relations firms to handle testing of job applicants, it is relatively easy to administer the MMPI in house. When the test is given by, say, a human resources office, the potential for misuse is acute. Says Dr. Steven Bisbing, a clinical and forensic psychologist who has administered psychological tests in a variety of employment settings: "It is not uncommon that nonpsychologists are administering psychological tests, and are making decisions based on their 'interpretation' of the results."
The MMPI is particularly prone to such misuse because copies are fairly easy to obtain, it has simple instructions, and the answer form can be mailed to commercial companies for computerized scoring and interpretation. These companies will generally provide a detailed narrative of the results, often including a clinical diagnosis. Even for employers who do not intend to use this diagnosis in determining whether to extend a job offer, such information is difficult to ignore. According to Dr. Gary Schoener, a psychologist who administers psychological testing in negligent hiring disputes, employers tend to overvalue test results because they seem to be objective and scientific.
Regardless of who administers and interprets the test, employers usually have access to the results. As Schoener notes, "It is extremely difficult for human resources personnel to resist revealing the information when pressured by upper management to do so, even when the information is supposed to be confidential." Besides, says Bisbing, "There is no doctor-patient relationship here - the clinician is performing the test for the employer."
Bisbing also notes that "increasingly, employers seem to want more information, not necessarily for any job-related purpose. Moreover, some employers are requesting that pre-employment mental health examiners render a diagnosis of the applicant." In Bisbing's experience, some employers are also requesting evaluations of prospective employees' general "mental fitness" for certain sensitive positions or jobs that involve public safety.
Pre-Offer Inquiries Limited
How do inquiries into the "mental fitness" of job applicants comport with the protection of disabled individuals under the Americans With Disabilities Act? The ADA prohibits medical examinations and disability-related inquiries of job applicants until after a conditional offer of employment has been extended. A major purpose of this provision is to prevent employers from using preoffer inquiries to exclude persons with "hidden" disabilities - such as certain psychological problems.
The ADA states that an employer "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 to the nature or severity of such disability." It may, however, "make preemployment inquiries into the ability of an applicant to perform job-related functions."
Equal Employment Opportunity Commission regulations clarify that at the pre-offer stage an employer "may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions." In other words, at this stage of the application process, the employer may undertake a limited inquiry into an applicant's ability to perform the job, but specific inquiries into the details of an applicant's disability are prohibited.
Medical examinations and disability-related inquiries are permitted after the employer has extended a job offer. That offer can be conditioned on the results of the examination only if all entering employees, regardless of disability, are subjected to the examination and the information is kept confidential. At the post-offer stage, employers can require medical examinations and ask disability-related questions, including questions about sick leave usage, illnesses, and diseases. Questions do not have to be job-related. But if an employer withdraws an offer after such testing or inquiries, the criteria used to screen out the potential employee must be job-related and consistent with business necessity, and must not tend to screen out individuals with disabilities.
The post-offer testing provisions recognize that in some industries, such as nuclear power and transportation, applicants are chosen based on criteria that appropriately include physical and psychological factors. For example, it is clearly consistent with the ADA to engage in post-offer testing to comply with Department of Transportation regulations requiring professional driven to obtain medical certification that they do not have certain clinical diagnoses that would interfere with their ability to safely operate a vehicle. See. e.g., EEOC v. Texas Bus Lines. 923 F. Supp- 965 (S.D. Tex. 1996).
When Is a Test 'Medical'?
Neither the ADA nor the EEOC regulations define "medical examination." However, the EEOC's "Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations" makes clear that psychological tests such as the MMPI are medical examinations. The guidance defines a "medical examination" as "a procedure or test that seeks information about an individual's physical or mental impairment, or health."
Among the factors the EEOC considers in determining whether a lest is medical are whether it is administered by a health care professional; whether the results are interpreted by a health care professional; whether it is designed to reveal an impairment of physical or mental health; and whether the employer is trying to determine the applicant's physical or mental health. According to the EEOC guidance, a psychological test is prohibited if it is medical based on these factors.
A psychological examination is also medical if it provides evidence that would lead to the identification of a mental disorder or impairment listed in the American Psychiatric Association's most recent Diagnostic and Statistical Manual of Mental Disorders. Psychological tests that are interpreted by a psychologist and provide evidence that can be used to diagnose mental health (for example, whether a person has paranoid tendencies, exhibits anxiety, or is depressed) are medical examinations - even if the employer claims that it uses the test merely to disclose tastes and habits.
Case law addressing the question of preoffer psychological testing is sparse. In the only case that directly addresses the issue, a federal district court in Florida concluded that pre-offer psychological testing (including the MMPI, the Inwald Personality Inventory, and the California Psychological Inventory) administered to an applicant for a corrections job violated the ADA. The court found that the tests "provided evidence that would lead to identifying a mental disorder or impairment" and that the ADA prohibited this type of extensive psychological testing. Barnes v. Cochran, 944 F. Supp. 897 (S.D. Fla. 1996), aff'd without op. sub nom. Barnes v. Broward County Sheriff's, 130 F.3d 443 (11th Cir. 1997).
By contrast, a federal district court in California found that the PASS-II, a psychological test designed to reveal "behavioral problems" and "emotional instability," was not prohibited at the pre-offer stage because it was not used to diagnose disabilities or impairments. Thompson v. Borg-Warner Protective Services Corp., 1996 U.S. Dist. LEXIS 4781 (N.D. Cal. 1996). The US Court of Appeals for the 8th Circuit recently approved the use of the MMPI to screen police applicants, stating that "where the selection of individuals to train for the position of police officer is concerned," appropriate psychological testing is job-related and consistent with business necessity. Miller v. City of Springfield, 146 F.3d 612 (8th Cir. 1998). The circuit's opinion did not indicate at what point in the application process the test was administered.
Other cases have agreed that psychological testing constitutes a prohibited medical examination under the ADA, but failed to reach the issue of whether die particular test violated the ADA under the circumstances. See, e.g., Grenier v. Cyanamid Plastics Inc., 70 F.3d 667 (1st Cir. 1995) (pre-offer psychological testing was a medical examination, but was not prohibited because it was part of an interactive process with an applicant with a known mental disability); Varganis v. City of Chicago, 1997 U.S. Dist. LEXIS 9031 (N.D. III. 1997) (prohibition on pre-offer medical examinations includes psychological examinations, but applicants here lacked standing to sue).
Another area of potential litigation involves employers who base adverse employment actions on an individual's false answer to impermissible questions about disability. In the one federal decision to address this issue, the district court rejected the employer's argument that the employee was fired because he engaged in misconduct, and held that the employer violated the ADA when it terminated the employee based on answers to questions that should not have been asked in the first place. Downs v. Massachusetts Bay Transportation Authority, 13 F. Supp. 130 (D. Mass. 1998).
Applicants May Lack Standing
Recently, employers have raised a legal bar that could frustrate efforts to get relief for those denied jobs as a result of illegal psychological testing. An increasing number of courts have agreed that applicants who are screened out of jobs as a result of psychological testing have standing to challenge this action only if they are qualified individuals with a disability as defined by the ADA. Numerous district courts have found that nondisabled plaintiffs who allege that employers failed to hire them based on their answers to impermissible inquiries lack standing under the ADA.
This result seems misguided in light of the clear provision in the ADA protecting those who are perceived to be disabled. The 10th Circuit recently came down the other way, holding that the ADA's policy of eliminating disability discrimination is best served by allowing victims of illegal medical questioning to sue. Griffing v. Steeltek Inc., 160 F.3d 591 (10th Cir. 1998). The 5th Circuit has dodged the question twice, both times finding that the plaintiff had failed sufficiently to allege injury in fact. (Last month the Supreme Court accepted certiorari in two cases addressing the issue of when the ADA protects individuals perceived to be disabled: Sutton v. United Air Lines Inc., 130 F.3d 839 (10th Cir. 1997), and Murphy v. United Parcel Service Inc., 1998 U. S. App. LEXIS 4439 (10th Cir. 1998).
The conclusion is clear. Employers who use the MMPI and other psychological tests do so at great legal peril. Such tests undoubtedly violate the ADA before a conditional offer of employment has been extended. After an offer has been made, employers must be prepared to demonstrate that any adverse hiring decision was based on job-related factors. In the vast majority of employment contexts, it will be next to impossible to show that "personality traits" are such factors.
The irony is that the information sought though psychological testing may not be worth the legal battle. Psychologists agree that reliance on the results of any single test to judge job applicants is misguided."There are a broad tenet in psychological testing, which is that no one test stands alone," says Bisbing. Heidel believes that "there is not much correlation between clinical diagnosis and how successful someone will be on the job," and "the MMPI will not help determine whether there is a good fit between the employer and employee."
Ruth Eisenberg is a partner in D.C.'s Harmon, Curran, Spielberg & Eisenberg specializing in employment litigation and counseling. Debra S. Katz is a partner in D.C.'s Bernabei & Katz specializing in employment discrimination matters. The authors wish to thank Meredith Burrell, a litigation associate with Bernabei & Katz for her assistance with this article.