TO:                  Business Leader

FROM:            John J. Ferriter, Esquire

DATE:             February 6, 2006

RE:                   Personality Test as Disability Discrimination

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             A "disability" within the meaning of the Americans with Disabilities Act (ADA) is not limited to physical impairments, but extends to mental impairments as well.  In addition, in order to advance the goal of stopping employment discrimination based on either actual or perceived disabilities, Congress put into the ADA some limits on the ability of employers to use ?medical examinations and inquiries? as a condition of employment.

            A chain of stores that rents household goods administered the Minnesota Multiphasic Personality Inventory (MMPI) to any employee seeking a promotion.  The fatal flaw with the test, as used by the employer, was that it may have measured personality traits, but it also went much farther than that, thereby becoming a prohibited medical exam that tended to screen out mentally disabled individuals, regardless of what might have been good intentions on the part of the employer.  Finding out if a person works well in a group or can handle a fast-paced office is not objectable.  On the other hand, the MMPI also considered where and applicant fell on scales measuring such conditions as depression, hysteria, paranoia, and mania.

                As noted by the Court in an ?Enforcement Guidance?, the EEOC has listed the following factors to consider in determining whether a particular test is a prohibited ?medical examination?.

(1)   Whether the test is administered by a health-care professional;

(2)   Whether the test is interpreted by a health-care professional;

(3)   Whether the test is designed to reveal an impairment of physical or mental health;

(4)   Whether the test is invasive;

(5)   Whether the test measures an employee?s performance of a task or measure his/her physiological responses to performing the task;

(6)   Whether the test normally is given in a medical setting; and

(7)   Whether medical equipment is used.

            If you have any questions, please feel free to call Attorney Jack Ferriter at 413-535-4200 or email at jferriter@ferriter.com.