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Pre-Employment Testing and the ADA

Written by Josh Millet

The Americans with Disabilities Act (ADA) is a law enacted by the United States Congress in 1990 that was designed to protect against discrimination based on disability. Among other things, the ADA prohibits employers from discriminating against job candidates with mental or physical conditions, and requires employers to make reasonable accommodations to employees (or job applicants) with disabilities. As it pertains to pre-employment tests, there are two main types of questions we get from customers regarding the ADA:

  1. What types of testing are not permitted under the ADA?
  2. What kinds of “reasonable accommodations” are appropriate when it comes to administering pre-employment tests to candidates with disabilities?

We’ll address #2 in a subsequent blog post, but for now will focus on question #1. It’s important to realize first that the ADA’s rules pertain to all sorts of information-gathering done as part of the employee selection process, not just tests.  According to ADA regulations, it isn’t legal to subject candidates to any kind of medical exam pre-hire as a condition of employment. Medical exams extend to both mental and physical health. In practice, this means that employers can’t ask for information relating to, or administer tests that attempt to assess, for instance, whether or not a job candidate has bipolar disorder or rheumatoid arthritis.

There are, of course, job-related exceptions to these regulations. For some jobs that have high stakes implications for public safety, there is a public interest in assessing mental health, and these instances are admissible by the ADA. Police officers, for example, undergo psychological screenings during the application process.

For most jobs, however, assessing mental health in the hiring process is off limits. For example, employers have used the Minnesota Multiphasic Personality Inventory (MMPI) inappropriately in the past. The MMPI is a clinical personality test used primarily in the mental health field to aid in diagnosis. Because the test is clinical in nature, it should never be used as an employee selection device by a typical employer.

Professionally developed employment personality tests do not assess mental health. What they do measure are relatively stable personality traits that have an impact on work performance. Some of these traits include conscientiousness, extroversion, openness, and stability. Stability, one of the traits in the well-established Big Five Personality Traits model, is often mistaken for having clinical implications. The Stability trait does not measure how mentally “stable” or “sane” an individual is – rather, stability measures how applicants handle stress or how emotionally reactive they are.  It is not in any way related to clinical or diagnostic tests that assess depression or anxiety, for example.  As a provider of pre-employment tests, we are sometimes asked if our tests can help weed out “crazy” applicants. We respond that our tests don’t assess this type of information, and that if they did, they would probably be illegal to use in the hiring process!

Any time you’re wondering whether or not a pre-employment test violates an ADA or EEOC guideline, one rule to keep in mind is the rule of job relatedness. Is the test assessing a trait or skill that is job-related and consistent with business necessity? Testing job candidates for mental or physical health conditions is not allowed by the ADA save for a few exceptions where public safety comes into play. For this reason, employers should avoid using tests that are clinical or diagnostic in nature. Fortunately, most professionally developed aptitude, personality, and skills tests do not violate these guidelines, and they can be a great resource for identifying candidates with the abilities or personality traits most associated with success for a particular position.

Josh Millet

Written by Josh Millet



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