July 22, 2005 / Issue No. 3-05
 
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Professional Development
AGC Midyear Meeting Will Provide Opportunities to Hear From Labor Department Officials and Basic Trade General Presidents
AGC to Offer Several Management Training Programs This Fall
HR Professionals Learn and Network at AGC Forum
Employment Regulations
New Regulation on Consumer Information and Records Disposal Now in Effect
FAR Revised to Adopt DOL Regulations on Site of Work and Union Dues Notices
DHS Issues “Rebranded” I-9 Form
Hiring & Firing
Use of Popular Personality Test Deemed Violation of ADA
Collective Bargaining
Recent Bargaining Results Vary Widely, with National Average Just Slightly Above Last Year’s
Evergreen Clause Remains in Effect Despite Request to “Reopen” Agreement
Taft-Hartley Funds
Contractor Does Not Have to Make Double Benefit Fund Payments Despite Competing Union’s Claim of Territory
Davis-Bacon
Highway Contractor Must Pay Prevailing Wages to Truck Drivers Under State Law Despite Exclusion Under Davis-Bacon

  Use of Popular Personality Test Deemed Violation of ADA
The U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has held that an employer’s use of a popular personality test to determine promotions violated the Americans with Disabilities Act (ADA).

The employer, Rent-A-Center (RAC), required candidates for promotion to take the APT Management Trainee-Executive Profile, which consists of nine tests designed to measure math and language skills as well as interests and personality traits.  One of these tests consisted of a large battery of questions from the Minnesota Multiphasic Personality Inventory (MMPI).  All parts of the APT profile were scored together, and any candidate who had more than 12 “weighted deviations” was not considered for promotion.  Accordingly, an individual could be denied a promotion based strictly on his or her MMPI results.  Steven, Michael, and Christopher Karraker are three brothers who worked for RAC.  Each took the APT and scored over 12 deviations, and were denied promotions.  They filed a class action lawsuit against RAC claiming that RAC’s use of the MMPI violated the ADA. 

The ADA contains three provisions explicitly limiting the use of “medical examinations and inquiries” as a condition of employment:  a prohibition against pre-employment medical examinations; a prohibition against the use of medical tests that are not job-related and consistent with business necessity; and a prohibition against the use of tests that screen out people with disabilities.  The central issue identified by the court here was whether the MMPI fits the definition of a pre-employment “medical examination.”  (Although the Karrakers were already employed by RAC, the parties agreed that the tests were administered “pre-employment” for ADA purposes because they were required for employees seeking new positions within RAC.) 

The court looked to the EEOC’s written guidelines for an answer.  The EEOC defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.”  The EEOC lists seven factors which should be considered in determining whether a particular test is a “medical examination.”  It further advises that psychological tests that are “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.

The court rejected RAC’s argument that it used the MMPI only to measure personality traits, not to disclose mental illness.  Rather, the court found that the MMPI is a psychological test that “is designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability.”  Therefore, it is best categorized as a medical examination, and its use violated the ADA.

The court noted that RAC failed to argue that its use of the MMPI was “job-related and consistent with business necessity.”  Accordingly, while this case may not establish that an employer’s use of the MMPI or a similar test for pre-employment screening is per se illegal, all employers are advised to seek qualified legal counsel before using such tests.

Karraker v. Rent-A-Center, Case No. 04-2881 (7th Cir., 6/14/05). [ return to top ]