Psychological Testing in ADA's Wake

Article excerpt

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~ test...is 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. …