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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Pre-employment mental health screenings

In the process of hiring a new employee, an employer may wish to perform personality tests and assessments to determine if the candidate is the right fit for the job. However, there are certain types of tests and questions which may be illegal in an interview, pre-employment or post-employment setting. A recent case from the Seventh Circuit Court of Appeals indicates that the Equal Employment Opportunity Commission (“EEOC”) and the courts have increased their scrutiny of utilizing personality tests in the employment decision-making.

In Karraker v. Rent-A-Center, Inc., 431 F. Supp.2d 883 (C.D. Ill. 2006), Plaintiffs filed a class action against their employer. The employees alleged that Rent-A-Center’s requirement for all employees or outside applicants seeking management positions to submit to a battery of nine separate written tests internally referred to as, “The Management Test,” violated the federal Americans with Disabilities Act (“ADA”). One of the required tests included the Minnesota Multiphasic Personality Inventory (MMPI); a psychological test used to diagnose and treat individuals with abnormal psychological symptoms and personality traits. Three employees at Rent-A-Center took the test, received poor scores, and were subsequently denied promotions. The employees sued under the ADA for failure to promote.

Congress passed the ADA in July 1990 to eliminate discrimination against individuals with disabilities including failure to promote. Under the ADA, before making a genuine job offer, any employer may ask questions only about the applicant’s ability to perform job related functions and may not ask whether the applicant has a disability or about the nature and severity of such a disability. The employer may require a medical examination once an applicant has been offered a job but only if such examination is administered to all new employees and the information is kept separate and confidential. The ADA prohibits medical examinations inquiring about the employee’s health once the employee has started working, unless such examinations are job related and consistent with business necessity.

Although the District Court in this matter held that an individual need not be disabled to bring a claim under these provisions of the ADA; it nonetheless dismissed the Plaintiffs’ failure to promote claim. On appeal, the Seventh Circuit Court of Appeals stated that the MMPI should be considered a “medical examination” under the ADA. Further stating that the test could reveal mental illness and could hurt the employment prospects of someone with a mental illness. Therefore, the Seventh Circuit reversed the District Court, stating that the brothers’ claim was valid under the ADA; and the test was illegal as a pre-employment screening tool. (It is important to note that although already employed with Rent-A-Center, the Court considered the employees to be “pre-employment” as they were applying for a new job within the company.)

While the ADA itself does not specifically define a “medical test”; the Equal Employment Opportunity Commission (“EEOC”) defines a medical examination as “a procedure or test that seeks information about an individual’s physical or mental impairments or “health.” Psychological tests that are used in the diagnosis of a mental illness qualify as a medical examination but psychological tests used to identify personality traits such as honesty and habits do not qualify as medical tests. The EEOC has seven (7) factors to determine whether or not a test is a medical examination 1) whether the test is administered by a health care professional; 2) whether the test is interpreted by a health care professional; 3) whether the test is designed to reveal an impairment of physical or mental health; 4) whether the test is invasive; 5) whether the test measures an employee’s performance of a task or measures his physiological responses to performing a task; 6) whether the test is normally given in a medical setting; and 7) whether medical equipment is used. Any one of the above factors may be sufficient to determine that the test is a medical examination.

If you were subjected to a pre-employment or post-employment test or examination that you feel may have been illegal, contact a lawyer to discuss your legal rights.

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