Employment Practices – Part 2

An employer’s use of the Minnesota Multiphasic Personality Inventory (MMPI) test in making employment decisions violates the Americans with Disabilities Act.

Church Law and Tax2006-05-01

Employment practices – Part 2

Key point 4-04. Many states recognize “invasion of privacy” as a basis for liability. Invasion of privacy may consist of any one or more the following: (1) public disclosure of private facts; (2) use of another person’s name or likeness; (3) placing someone in a “false light” in the public eye; or (4) intruding upon another’s seclusion.
Invasion of Privacy

Key point 8-10. The federal Americans with Disabilities Act prohibits employers with at least 15 employees, and that are engaged in interstate commerce, from discriminating in any employment decision against a qualified individual with a disability who is able, with or without reasonable accommodation from the employer, to perform the essential functions of the job. Accommodations that impose an undue hardship upon an employer are not required. Religious organizations may give preference to nondisabled members of their faith over disabled persons who are members of a different faith.
Americans with Disabilities Act

* A federal appeals court ruled that the Minnesota Multiphasic Personality Inventory (MMPI) test is a ‘medical exam,’ and so an employer’s use of the test in making employment decisions violates the Americans with Disabilities Act. A company required employees who were being considered for promotions to upper-management positions to take the APT Management Trainee-Executive Profile, which is made up of nine tests designed to measure math and language skills as well as interests and personality traits. As part of the APT Test, employees were asked 502 questions from the MMPI, a test the employer used to measure personality traits. The MMPI does not simply measure such traits as whether someone works well in groups or is comfortable in a fast-paced office. Instead, the MMPI considers where an applicant falls on scales measuring traits such as depression, hypochondriasis, hysteria, paranoia, and mania. In fact, elevated scores on certain scales of the MMPI can be used in diagnoses of certain psychiatric disorders.

All parts of the APT Test were scored together, and any applicant who had more than 12 ‘weighted deviations’ was not considered for promotion. So, an applicant could be denied any chance for advancement simply because of his or her score on the MMPI. Some employees who had more than 12 deviations on the APT sued the employer, claiming its use of the MMPI as part of its testing program violated the Americans With Disabilities Act (ADA).

A federal appeals court noted that the ADA imposes three limits on the use of ‘medical examinations and inquiries’ as a condition of employment: (1) a prohibition against using pre-employment medical tests; (2) a prohibition against the use of medical tests that lack job-relatedness and business necessity; and (3) a prohibition against the use of tests that screen out (or tend to screen out) people with disabilities. The court concluded that the MMPI is a medical exam, which is defined broadly by the ADA as ‘a procedure or test that seeks information about an individual’s physical or mental impairments or health,’ since it is designed ‘to reveal a mental impairment.’ To illustrate, ‘it seems likely that a person who has a paranoid personality disorder, and is therefore protected under the ADA, would register a high score. And that high score could end up costing the applicant any chance of a promotion. Because 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 court rejected the employees’ claim that their employer invaded their privacy by making their test scores available to other employees. It concluded: ‘The test results were kept in a filing cabinet in personnel files, and anyone wishing to view the records needed permission to do so from someone in the payroll department. The filing cabinet was locked at night, and the records were eventually moved into a locked room. Although someone could have seen the test results sitting in the fax machine or in the personnel file, that possibility is not sufficient to support a claim.’

Application. Any church or religious organization that uses the MMPI in making employment decisions should consult with an attorney to evaluate the legality of such a practice in light of this federal appellate court ruling. The court’s decision is binding only in the seventh federal circuit (which includes the states of Illinois, Indiana, and Wisconsin), and may or may not be followed in other jurisdictions. Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005).

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