ADA and Medical Examinations

Facts of the Case

Rent‐A‐Center, a chain of stores that rents furniture, appliances and other household items on a rent‐to‐own basis, required employees to take the APT Management Trainee‐Executive Profile to be promoted. The APT profile consists of nine separate tests that evaluate math and language skills as well as personality traits and interests. Included in the test are 502 questions from the MMPI.

The three Karraker brothers, employees of Rent‐A‐Center, took the test and received poor scores. They were denied promotions and brought a class action suit against Rent‐A‐Center alleging that the use of the MMPI as part of the test violated the Americans With Disabilities Act of 1990 (ADA). The district court granted summary judgment in favor of the employer and ruled that the use of the MMPI did not violate the ADA. The Karrakers appealed to the United States Court of Appeals for the Seventh Circuit.

Ruling

The court of appeals found that the MMPI was designed, at least in part, to reveal mental illness and could hurt the employment prospects of someone with a mental illness. The administration of the MMPI to the employees constituted a violation of the ADA.

The court of appeals reversed and remanded the judgment so that summary judgment could be entered in favor of the employees on their claim that the MMPI is a medical test under the ADA.

Reasoning

The MMPI as used by Rent‐A‐Center as part of the APT Management Trainee Executive profile is a medical test under the ADA. 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.

Rent‐A‐Center argued that it used the MMPI to disclose habits and personality traits and not to diagnose a mental disorder. Rent‐A‐Center asserted that the test does not reveal whether an individual is clinically depressed but only measures the extent to which the test taker feels depressed.

The MMPI can be scored by two different protocols: a clinical protocol used for medical purposes and a vocational protocol, to discern personality traits. Rent‐A‐Center did not have a psychologist interpret the test results and used the vocational profile to identify personality traits of its employees. The district court determined that, since the test was not interpreted by a psychologist and it was scored by using a vocational protocol, it was not a medical test as defined by the ADA.

The appeals court determined that not having a psychologist interpret the MMPI did not exclude its being a medical examination. The court found that no matter how the MMPI is used or scored, it will have the effect of hurting employees with mental disorders and “is best categorized as a medical examination.”

Rent‐A‐Center could have argued (but did not) that even if the MMPI was a medical examination, it was properly given, because its use was job related and consistent with business necessity. However, the defense never raised that issue and the court did not address it.

Discussion

Congress passed the Americans With Disabilities Act (ADA) in July 1990 to …provide a national mandate for the elimination of discrimination against individuals with disability, to provide clear strong consistent enforceable standards, to ensure a central role for the federal government in enforcing the act, and to use the regulation of commerce to protect persons with disability from discrimination [Parry J: Overview of the Americans with Disabilities Act, in Mental Disabilities and the Americans With Disabilities Act: A Practitioner's Guide to Employment, Insurance, Treatment, Public Access and Housing. Edited by Parry J. Washington, DC: American Bar Association, 1994, p 1].

The ADA definition of disability has three components: (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of such impairment; and (3) being regarded as having such an impairment. A mental impairment includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The ADA has five titles, two of which deal with employment. Title I of the ADA applies to employers with 15 or more employees and prohibits employers from discriminating against a qualified individual with a disability. All employees of public entities are covered under Title II, regardless of the number of employees.

Before making a genuine job offer, an 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 an examination is administered to all new employees and the information is kept separate and confidential.

The ADA also 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. According to the EEOC, the following factors should be taken into account to determine whether the 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/her 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 may be sufficient to determine that the test is a medical examination.

This case reflects the fact that the EEOC and the courts have increased their scrutiny of personality tests in the workplace. Employers may wish to determine if tests they use to elicit personality traits may in fact elicit information regarding an applicant's possible mental illness. It will also be helpful for employees to ensure that any personality tests are job related and measure the applicant's ability to perform the job.