Q. We would like to administer personality tests to job applicants. Would this violate the ADA?
A. Personality tests are a good example of the types of policies likely to be affected by the recently passed ADA Amendments Act of 2008.
According to a 2005 report, 30% of all companies use some form of personality test to assist with hiring decisions. Those tests may affect people who are hearing impaired or who have certain cognitive, developmental, learning or intellectual disabilities.
For instance, as one commentator has recently noted, a person who is hearing impaired “may have difficulty understanding the nature of a question being asked by an employment test, as signed languages and spoken/written English have different grammatical structures.”
Likewise, people with cognitive, developmental or learning disabilities may have a hard time understanding the questions posed on an employment test even though they’re perfectly capable of performing the essential functions of the job for which the test is being used.
In both of those instances, it’s hard to imagine a reasonable accommodation that would effectively allow the applicant to take the test.
In the only federal appellate case directly addressing this type of hiring procedure under the ADA, the 7th Circuit Court of Appeals found that a test given by an employer that detected where a job applicant fell on “scales measuring traits such as depression, hypochondriasis, hysteria, paranoia, and mania” violated the ADA’s prohibition on the use of “medical examinations and inquires” as a condition of employment.
Most employment tests aren’t invasive enough to be considered unlawful medical examinations.
However, the amended ADA relaxed that standard for proving a disability, bringing it in line with California’s Fair Employment and Housing Act. That means employers that use such tests may now be more likely to face claims of disparate impact on employees or applicants with “learning, reading, concentrating, thinking, and communicating” conditions. The amended law includes those terms (along with “major bodily functions”) within the ADA’s definition of “major life activities.”
As a result, impairments such as dyslexia or other learning disabilities are now much more likely to be ADA-covered disabilities. And policies or practices that adversely impact individuals with these impairments will be more likely to result in liability for employers that fail to provide a reasonable accommodation.
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