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Years ago, when the legendary football coach George Allen coached the Washington Redskins, there was a story that he interviewed a college football player in order to decide whether he should be drafted. During the interview, Allen asked the player what he would do if a fly were bothering him during the interview. When the player described the violent manner in which he would catch and kill the fly, Allen, the story goes, told him that that was the best “fly killing” story he had ever heard and used a high pick on the player. Personality tests in the workplace have generally advanced far beyond questioning fly-killing techniques. But at what point does a personality test administered to a job applicant before an offer is made become a “medical test,” prohibited by the Americans with Disabilities Act? MMPI AND PROMOTION In Karraker v. Rent-A-Center Inc., the 7th U.S. Circuit Court of Appeals held that Rent-A-Center’s use of the Minnesota Multiphasic Personality Inventory (MMPI) test, as part of its promotion decision-making process, violated the ADA on the grounds that the test was a “medical test” that could not be administered before an offer of employment was made. The Karraker brothers, Steven, Michael and Christopher, all worked for Rent-A-Center in Illinois. Each sought a promotion and, as part of the promotion process, they were required to take a battery of tests, including the MMPI. Rent-A-Center conceded that the MMPI does not simply measure workplace personality traits, but also can be used to determine whether an individual has traits such as depression, hypochondria, hysteria and paranoia. The test can also be scored in different methods in order to assess different traits. For instance, the MMPI could be scored “clinically” for use as a medical diagnostic tool, while a “vocational” scoring focuses more on personality traits of potential employees. Rent-A-Center’s position was that it used the MMPI “solely for the purposes of discerning personality traits” and that it did not score the test “clinically.” Based upon this assertion, the district court granted summary judgment in favor of Rent-A-Center, finding that the MMPI was not a “medical examination” as defined by the ADA. The Karrakers (each of whom had unacceptable scores on their tests) appealed the district court’s dismissal. TEST OR ‘MEDICAL EXAMINATION’ The 7th Circuit initially looked to the EEOC’s definition of “medical examination” for guidance. The commission has issued guidelines 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 observed that the case turned, therefore, on whether the MMPI is designed to reveal a mental impairment. Rent-A-Center argued that the MMPI does not measure an applicant’s clinical depression, but only “the extent to which the test subject is experiencing the kind of feelings of ‘depression’ that everyone feels from time to time (e.g. when their favorite team loses the World Series).” This led to the amusing observation by the court that an Illinois company would have a difficult time filling management positions if it excluded disgruntled Cubs fans. The application of this observation to filling management positions in Philadelphia seems equally self-evident. Rent-A-Center argued that because a psychologist did not interpret the MMPI during its application process, there was no clinical component to the test’s use, and it was, therefore, not a “clinical examination” under the ADA. The court found that “the problem with the district court’s analysis is that the practical effect of the use of the MMPI is similar no matter how the test is used or scored — that is, whether or not Rent-A-Center used the test to weed out applicants with certain disorders, its use of the MMPI likely had the effect of excluding employees with disorders from promotions. [B]ecause it 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, we think the MMPI is best categorized as a medical examination.” HOW IT COULD BE USED While the Karraker decision is one of first impression, it is hard to imagine that this issue will remain in the background. A recent survey done by SHRM (Society for Human Resource Management) indicates that approximately 30 percent of U.S. companies use some kind of testing to screen applicants for jobs. While it is difficult to imagine that questions such as: “[Do you] commonly hear voices without knowing where they are coming from?” and “[Does your] soul sometimes leave [your] body?” (actual questions asked of the Karrakers) would bear any relations to whether an applicant would be a successful candidate, employers must see their value on a certain level. The concern with the decision is the focus on what the test “could” reveal, as opposed to its stated purpose. Rent-A-Center stated that it used the test only in a nonclinical way, to determine the best candidate for promotion. That the MMPI could have been used clinically to reveal a candidate suffering from depression seems to be the equivalent of saying that a hand-eye coordination test, given to all applicants for a firefighter’s position, is a medical test because it could be interpreted to reveal neurological issues with the applicant. The court seems to have set the bar too high in banning tests based on what they could reveal, instead of focusing on how the test is actually used. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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