Academic journal article Northwestern University Law Review

Is a Personality Test a Pre-Job Offer Medical Examination under the ADA?

Academic journal article Northwestern University Law Review

Is a Personality Test a Pre-Job Offer Medical Examination under the ADA?

Article excerpt

I. INTRODUCTION

Imagine that you manage a customer support department in a midsized software company. Your customers have purchased an extremely expensive and elaborate computer software and hardware system from you. They depend exclusively on your customer support department for timely and expert guidance to diagnose and fix problems with the system. A system malfunction could cost your customers thousands of dollars per `hour, or even per minute, in lost production. When the customer calls, he or she is often under great pressure to stop the malfunction, and may be irate, short-tempered, and impatient. As the manager of this customer support department, you have a tremendous interest in how your employees interact with the customer in this explosive situation. Unresponsive employees could cripple your company's relationship with a customer, jeopardize future business, and potentially threaten your job. It is important that your employees are even-tempered, patient, and not easily perturbed. You would not want a person who tends to withdraw and disengage in the face of apparent hostility. In essence, the question is what type of personality would you want your employee to have? How do,you ensure that you hire individuals with the proper personality for your customer support department?

Many managers turn to one or more of tire several hundred personality tests available for assistance in these hiring decisions.' Managers often fear the consequences of a poor choice when interviewing for positions that need specific personality characteristics. Consultants and testing companies market their products and services to alleviate this legitimate fear and to help companies make better hiring decisions.z Personality tests seem to add a measure of certainty to the hiring process for these positions and, therefore, reduce the manager's anxiety.' As the manager of the hypothetical customer support department, you would administer a personality test as one component of your interviewing process because you believe that the test verifies and supplements your impressions of the candidate.

However, an ongoing debate persists concerning the effectiveness of personality tests.' These tests may not make your choice better or more certain, but may only make you believe that you made a better hiring decision. Presumably, the test's true impact on the hiring decision will vary depending on which particular personality test a manager uses. Whatever their effectiveness, personality tests are being used more frequently,s and their increasing popularity lifts them into the cross fire of three areas within the law: psychological testing, disability discrimination, and employee medical screening. ,

These three areas converge in the Americans with Disabilities Act of 1990 ("ADA"),6 which prohibits pre job-offer medical examinations.' Whether a personality test qualifies as a psychological medical examination under the ADA is an issue that is "just beginning to be addressed by the judicial system."8 Recently, two federal district courts faced this question and reached opposite results.9 Both courts relied on interpretive information published by the Equal Employment Opportunity Commission ("EEOC").' The EEOC publishes factors that provide guidance to employers trying to determine whether a test or procedure is a prohibited medical exam." The courts' opposing results are not surprising when one considers the nature of the EEOC guidelines. The guidelines state that psychological tests are medical exams, but they also state that psychological tests that merely measure habits or tastes are not medical exams.12 Personality tests, which are typically classified as a form of psychological testing,13 are difficult to classify along these lines. In light of this ambiguity, this Comment advocates a modified test for courts to use to determine whether a personality test is a preoffer medical examination. The modified test presumes that a personality test administered by a health care practitioner meets the ADA's definition of medical examination, but allows an employer to rebut the presumption with information relating to the purpose and use of the test. …

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