Publications: Seventh Circuit Clarifies ADA Prohibitions of “Medical Examinations”

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Title I of the Americans with Disabilities Act (“ADA”) explicitly restrains employers from using the results of “medical examinations and inquiries” as conditions of employment. It prohibits pre-employment “medical tests,” medical tests lacking jobrelatedness and business necessity, and tests that screen out or tend to screen out the disabled. In Karraker v. Rent-A-Center, Inc., No. 02-2026 (June 14, 2005) the Seventh Circuit Court of Appeals recently ruled that the popular Minnesota Multiphasic Personality Inventory (“MMPI”) was a “medical examination” and that its use in blocking employees’ promotional opportunities violated the ADA. In so ruling, the Seventh Circuit reversed the district court’s approval of the defendant employer’s use of the test and established a precedent of concern to all employers using or considering using personality or other “psychometric” testing to guide their employment decisions.

The MMPI uses questions designed to identify subjects’ personality traits, including honesty and the ability to work with others, and thus can aid employers in making hiring and advancement decisions. But the MMPI also includes true or false questions sometimes used in diagnosing mental disorders such as, “I see things or animals or people around me that others do not see” or “at times I have fits of laughing and crying that I cannot control.” The Karraker Defendant required employees seeking promotions, including the plaintiffs, to take the MMPI. Plaintiffs became ineligible for promotions based on their test results. Their employer claimed that it used their test results simply to measure personality traits—a common application of the MMPI among employers. It argued that a clinical psychologist did not interpret its employees’ test results and denied using them to diagnose mental disorders. The Karraker Plaintiffs, however, argued that their employer’s use of MMPI results blocked their promotions in violation of the ADA and the Seventh Circuit agreed.

While the ADA’s language leaves room for debate over whether its ban on certain “medical examinations” includes personality trait tests like the MMPI, the EEOC’s regulations define “medical examination” as including, “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The Commission’s regulations list factors to be weighed in determining what constitutes a prohibited “medical examination,” including whether the test is administered or interpreted by a health care professional or normally given in a medical setting by a health care professional, whether it is designed to reveal an impairment of physical or mental health or is invasive, whether it measures employees’ performance of a task versus their physiological responses to it, and whether medical equipment is used in giving it.

The Karraker Court noted that the presence of even one of these factors could suffice to make a test an ADA-prohibited “medical examination.” Its analysis of the factors distinguishing permissible personality tests from proscribed “medical tests” was at the core of its decision to reverse the district court. While the district court accepted the defendant employer’s argument that it lawfully used the MMPI only to assess inherent personality traits and moods of tested employees, the Seventh Circuit rejected it. The Court concluded that if the MMPI was being used to gauge employees’ moods on the day of a test it could not be a reliable indicator of future job performance. The Seventh Circuit concluded that alternately, the defendant employer might instead be using the MMPI to expose deeper mental impairments and to “weed out” applicants with certain mental disorders and exclude them from promotions. The appellate court thus found that the defendant employer’s “use of the MMPI likely had the effect of excluding employees with [behavioral] disorders from promotion” and so violated the ADA. The Court was unpersuaded by the evidence that the defendant employer never consulted a psychologist to review employees’ test results, finding that the “practical effect of the use of the MMPI is similar no matter how the test is used or scored.”

The Karraker Court concluded, “[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. And even though the MMPI was only a part (albeit a significant part) of a battery of tests administered to employees looking to advance, its use, we conclude, violated the ADA.”

The district and appellate courts’ disagreement in Karraker highlights the subtle analytical distinction between lawful pre-employment personality testing and illegally discriminatory “medical examinations” under the ADA. The Seventh Circuit’s decision has important ramifications for employers using psychometric test results as hiring or promotional criteria. Those who find the tests useful must be mindful of the EEOC factors discussed and adopted in the Karraker decision, and particularly be cautious in using tests that provide both personality trait information and results that can be used to diagnose personality disorders or mental impairments. Using tests that yield information on a subjects’ mental health exposes employers to ADA liability, particularly if test performance, either alone or in combination with other factors, is used to limit applicants’ or employees’ employment opportunities. Ultimately, the Karraker decision forces employers to consider whether the useful personality data certain tests yield is worth the exposure to employment liability that they will create if they are deemed to span the fine and faint line that separates permissible personality tests from illegal medical examinations.