My soul sometimes leaves my body--true or false?
This was one of a barrage of odd questions brothers Steven, Michael and Christopher Karraker answered when applying for promotions at a Rent-A-Center Inc. (RAC) in Chicago. Why a manager at a furniture-rental chain would need to verify the whereabouts of their souls was beyond them. The test they were taking was the Minnesota Multiphasic Personality Inventory (MMPI), a tool used by psychologists to diagnose mental illness. In order to gauge a person's sanity, it asks such questions as, "I see things or animals or people around me that others do not see." RAC bundled the MMPI with eight other tests and used the results to determine whether an employee would make a good manager.
"There are all sorts of tests that you can do that aren't medical examinations," says Steve Schwartzman, a partner at Hodes, Ulman, Pessin & Katz in Towson, Md. who specializes in labor and employment law. "But these types of personality profiles are considered at least by this court to be medical examinations mainly because they could provide evidence, which would lead someone to identify that the applicant has a mental disorder or an impairment."
Furthermore, while the ADA explicitly prohibits pre-employment medical testing, the court found that testing before offering a promotion also violates the ADA.
Alvarez suggests that in-house counsel be directly involved with a company's decision to use a certain test to screen employees. He says that GCs should look at employment tests with a skeptical eye.
"GCs need to examine all the inquiries that are being made and perhaps challenge the testing company promoting the test as to why those questions need to be asked and what is the purpose behind them," he says. "GCs should ask how these tests were developed. Were they developed with the assistance of medical and psychiatric professionals? Is the test used by the medical community for reasons other than identifying personality traits, and is it given by mental health professionals in hospitals and other clinical settings?"