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Psychological testing in ADA's wake.

SEVERAL YEARS AFTER the passage of the Americans with Disabilities Act of 1990 (ADA), companies remain confused over its impact on the use of integrity tests or psychological tests in general. The ADA's impact on written psychological tests is minimal, except in the case of those tests containing medical inquiries or used to diagnose impairments.

The ADA describes discrimination as "using qualification standards, employment tests |integrity and other psychological tests~ or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the |standard or~ shown to be job-related for the position in question and is consistent with business necessity."

According to the Equal Employment Opportunity Commission (EEOC), this language means that an employer must only demonstrate that a test is job-related and consistent with business necessity when a direct link exists between performing poorly on the employment test and the disability. A test that screens out individuals for reasons unrelated to a disability does not violate the ADA. If performance on the test is directly affected by the disability, ADA is not violated if documentation shows that the test is valid for predicting essential aspects of the job, while also taking into consideration reasonable accommodation for performing the job. Such an approach closely parallels the long-standing approach to determining whether a test is justified under Title VII of the Civil Rights Act.

To ensure compliance with the ADA, employers should use only those testing instruments that have documented evidence of validity for predicting essential job elements. In response to this, leading integrity test publishers have developed evidence that their testing instruments are valid predictors of essential job elements.

A second ADA provision, which relates to psychological tests, deals with the issue of test administration or reasonable accommodation in the testing process. Under the law, this form of discrimination involves "failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure)." The test must measure what it purports to measure. Employers must also ensure that making reasonable accommodations for test takers does not invalidate any particular test.

Companies can comply with the requirements of this section by ensuring that test takers are reasonably accommodated in the testing process. For example, a dyslexic applicant will have difficulty reading, and therefore, should be given an oral, rather than a written, test. However, the law provides that if the test is used to assess reading and if reading is an essential function of the job, such a testing accommodation is unnecessary. To ensure that appropriate arrangements are available, applicants should be made aware that testing will be conducted, and they should be invited to request accommodations prior to the test.

These requirements are not new to test publishers. Many states had previously enacted disability protections parallel to those of the ADA. Moreover, professional guidelines and standards have focused on the issues of appropriate validation and accommodation in testing applicants.

Although application of the above provisions is fairly straightforward, whether psychological tests are considered medical examinations under the ADA is not as clear. The ADA provisions state that no medical examinations may take place at the pre-offer screening stage but may be conducted only after a conditional offer of employment has been made to the job applicant. Such a requirement is based on the propensity for medical examinations to reveal applicant disabilities.

The key to an analysis of this issue under the ADA and the EEOC rules starts with the fundamental definition of impairment as any mental or psychological disorder. The EEOC's rulings clarify the scope of what is intended to be included in the definition of mental impairment. The guidelines expressly exclude common personality traits, such as poor judgment or quick temper, where they are not symptoms of a mental or psychological disorder.

Many personality traits are not mental disabilities. Consequently, employers may legally inquire about a broad set of traits at the preemployment stage. The only limitation on the use of any preemployment psychological test is that the test may not disclose a mental or psychological disorder.

The definitive resource on what constitutes a mental or psychological disorder is the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association. Although Congress did not reference the text in the law, it was mentioned by Sen. William Armstrong (R-CO) during the ADA debate before its passage.

In determining what constitutes a mental impairment under the Rehabilitation Act of 1973, the precursor of the ADA, the courts typically have been guided by the DSM since it is considered the standard source and lists mental disorders by name, along with characteristic symptom clusters. If the medical community does not consider something to be a mental disorder, it is not likely to be considered an impairment under the ADA.

The EEOC has relied heavily on Rehabilitation Act cases in setting forth its guidelines regarding psychological testing under the ADA. For example, in a 1989 appeals court case, Daley v. Koch, a candidate for the New York City Police Department was refused employment based on the results of two psychological tests, as well as a follow-up interview with the employer's psychologist. Based on that information, the police department concluded that the applicant had the personality traits of poor judgment, irresponsible behavior, and poor impulse control, which rendered him unsuitable to be a police officer. The applicant was not diagnosed as having any specific mental disorder. In ruling in favor of the employer, the appeals court held that the traits assessed by the tests " not amount to a mental condition that Congress intended to be considered an impairment which substantially limits a major life activity and therefore, a person having those traits or perceived as having those traits cannot be considered a handicapped person within the meaning of the Act."

The reasoning employed by the court in Daley suggests that what is at issue is not so much the specific test, but rather the use to which the test or scale of the test is being put. Most tests used in employment settings are used to assess applicants with respect to qualities that are not even remotely similar to those contained in the definition of impairment.

To the extent that a test or scale has a purpose or use to disclose an impairment, that test may only be used after a conditional offer of employment has been made. To the extent that a test or scale is used to assess personality traits, behavior, attitudes, or propensity to act, when these are not symptoms of a mental disorder, such a test may be used at the pre-offer stage. A final consideration in determining whether a test is appropriate at the pre-offer stage is the test content. Along with its prohibition of requiring medical examinations prior to the job offer, the act also prohibits inquiries regarding disabilities at the applicant stage. Test questions regarding mental and physical problems, such as whether a person becomes ill easily or has spent time in therapy, mandate that a test must be conducted only after tendering a conditional offer of employment.

Most employment tests, including integrity tests, do not contain such inquiries and, therefore, are not affected by this prohibition. Generally, only tests developed for clinical purposes, like the Minnesota Multiphasic Personality Inventory (MMPI), contain such inquiries. Their use under the ADA is most likely limited to after a job offer is made.

Such a limitation regarding the timing of administration is not necessarily a shortcoming of the MMPI, which is available only to professional psychologists and must be administered and interpreted by a professional. This instrument has been extensively researched. It can be an effective screening instrument, particularly for a safety sensitive position.

No challenges have been made regarding the use of preemployment psychological testing after passage of the ADA. In fact, the majority of the more than 11,500 ADA complaints have involved wrongful termination or reasonable accommodation, rather than hiring practices. The first-year statistics do, however, reveal that the second leading type of impairment involved in those complaints was mental impairment. Given such complaints, diagnostic testing may eventually become an issue before the EEOC.

The ADA is not designed to attack or unreasonably restrict the use and timing of preemployment psychological testing. Rather, the law serves as a safeguard to ensure that employers are using only nondiscriminatory and valid selection measures. By enacting the ADA, Congress sought to ensure that disabled individuals are fairly and accurately evaluated for employment, goals that are essentially consistent with the current use of all preemployment psychological testing.

David W. Arnold, Esq., PhD, is general counsel and vice president of research for Reid Psychological Systems and general counsel for the Association of Test Publishers. Alan J. Thiemann, Esq., is a partner in the firm of Taylor Thiemann & Aitken, in Alexandria, Virginia.
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Copyright 1994 Gale, Cengage Learning. All rights reserved.

Article Details
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Title Annotation:Preemployment Testing; Americans with Disabilities Act of 1990
Author:Arnold, David W.; Thiemann, Alan J.
Publication:Security Management
Date:Jan 1, 1994
Previous Article:Integrity tests and the law.
Next Article:The search for an honest work force.

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