7th Circuit Appeals Court Ruling in the Karraker v. Rent-A-Center case confirms the appropriate use of the MMPI-2™ test in employment settings

The recent 7th Circuit Appeals Court ruling in the Karraker v. Rent-A-Center case has resulted in questions regarding the lawful use of the MMPI® (Minnesota Multiphasic Personality Inventory®) test for employment purposes. The information below is not intended to be and is not provided as legal advice.

If you have specific questions about how the Americans with Disabilities Act of 1990 ("ADA") applies to your use of employment assessments, you may want to contact an attorney specializing in employment law or ask your question at http://www.usdoj.gov/crt/ada/qandaeng.htm.

1. There have been articles in newspapers and employment journals that seem to say that using the MMPI test for any employment testing is illegal. Is that true?
   
   No. The articles have tended to oversimplify the ruling, resulting in possibly misleading information. In the Karraker v. Rent-A-Center case, a portion of the MMPI test was administered before candidates for job promotions were given a conditional offer of employment. Because Rent-A-Center was subject to the ADA, and because the MMPI test was determined by the Court to fall within the ADA’s definition of a Medical Examination, the pre-offer use was found to be illegal. The principles articulated in the Karraker v. Rent-A-Center ruling would also apply to use of the MMPI-2™ (Minnesota Multiphasic Personality Inventory-2™) test, which replaced the MMPI test in 1989.
   
   
2. Will you be making any changes to the MMPI-2 test or the Personnel Report as a result of the Karraker v. Rent-A-Center case?
   
   No. The Court’s ruling is completely consistent with the way we have advised that the MMPI-2 test be used in employment settings, so no changes appear to be required. The 7th Circuit Appeals Court did not rule on the efficacy of the MMPI assessment, but on the pre-offer timing of test administration in this particular case. The assessment is still the most widely researched test of adult psychopathology and is considered a highly effective tool for testing applicants for positions involving the safety of the public.
   
   
3. How does the Karraker v. Rent-A- Center case affect the use of the MMPI test for pre-employment assessment?
   
   The general effect of the case was to correct the misguided holding of one federal district court that the MMPI assessment is not necessarily a Medical Examination under the ADA. And therefore:
   
   
   1. If the employer is subject to the ADA; and
   2. If the MMPI test is administered prior to a conditional offer of employment, then
   3. The timing of the administration of the MMPI test violates the ADA.
      
      
   You should know that the ruling is consistent with The User’s Guide to The Minnesota Report™: Revised Personnel System (Third Edition), published in 2001, which advises as follows: "Currently, given ADA requirements, testing usually takes place after a conditional offer based on job qualifications has been made."
   
   
4. What constitutes a conditional offer of employment?
   
   According to EEOC enforcement guidance, "In order for a job offer to be considered bona fide, an employer should have evaluated all relevant non-medical information which, from a practical and legal perspective, could reasonably have been analyzed prior to extending an offer." The relevant guidelines also reference general contract law, which indicates that the terms of a bona fide agreement must be explicit enough so a court can ascertain the respective obligations of each party to the contract. Thus, prior to conducting a Medical Examination as defined by the ADA, an employer covered by the ADA, would need to tender a conditional offer of employment, which might typically include the following:
   
   
   • hiring agency/department name
   • job applicant’s name
   • title of position applied for
   • salary
   • start date (pending results of medical examination).
     
     
5. So if the employer makes an offer of employment, conditional on passing the Medical Examination, which may include administration of the MMPI-2 test, the use of the test in screening candidates is permitted?
   
   That’s the general rule. The employer should check with its counsel to determine whether the employer is covered by the ADA, and whether the use of a personality test as part of the Medical Examination is appropriate for the hiring process. As the User’s Guide to The Minnesota Report™: Revised Personnel System (Third Edition) notes, "courts have typically upheld the use of the MMPI [tests] for occupations in which an individual is exposed to high levels of stress such as law enforcement or firefighting (McKenna v. Fargo, 1978, Miller v. City of Springfield, 1998)."
   
   
6. The MMPI assessment is a personality test. Why is it being called a Medical Examination in this case?
   
   The Appeals Court used the term Medical Examination as it is defined by EEOC guidelines. According to these guidelines, the following factors are used to determine whether a particular test is a Medical Examination:
   1. whether the test is administered by a health care professional or trainee;
   2. whether the test is interpreted by a health care professional or trainee;
   3. whether the test is designed to reveal an impairment of physical or psychological health;
   4. whether the test was given for the purpose of revealing impairment or state of physical or psychological health;
   5. whether the test is invasive (e.g., requires drawing of blood, urine, breath, etc.);
   6. whether the test measures physiological/psychological responses (as opposed to performance of a task);
   7. whether the test normally is given in a medical setting; and
   8. whether medical equipment is used for the test.
      
      
7. If I’m asked to administer an MMPI-2 test for employment screening purposes, what do I do?
   
   The User’s Guide to The Minnesota Report™: Revised Personnel System (Third Edition) advises that practitioners be "to be familiar with Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act (ADA) of 1990, as amended, and any other pertinent federal and state laws." In light of the Court’s opinion, as well as the EEOC guidelines, an employer covered by the ADA would be well advised to administer the MMPI-2 test only after a conditional offer of employment has been tendered.
   
   
8. Do individuals now have the right to refuse to take the MMPI-2 test?
   
   Individuals can always refuse to participate in any part of the employment process (e.g., tests, interviews, background checks). Generally this causes them to be precluded from further consideration for employment. Individuals taking the MMPI-2 test and organizations using the test in employment situations should note that the 7th Circuit Appeals Court did not rule on the efficacy of the MMPI assessment, but on the pre-offer timing of test administration in this particular case. The assessment is still the most widely researched test of adult psychopathology and is considered a highly effective tool for testing applicants for positions involving the safety of the public.

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