EMPLOyER'S PRACTICAL LEGAL GUIDE Plain Language About ...

1.16 Employer’s Practical Legal GuideIf you use personality tests, ask yourself:• Is the test scientifically valid? In other words, does it measurewhat it claims to measure and, if so, how accurately?• Is the test reliable? A test is reliable when it consistently producesthe same result. The court in Rent-A-Center was influencedby the fact that a person could do better or worse onthe test depending on his mood at the time.• Does the test discriminate against a protected class? InRent-A-Center, the court ruled that the test discriminatedagainst the mentally disabled. The same test had been criticizedfor discriminating against racial, religious and sexualminorities.• Is the test the best way to gather information? Will the testtell you anything more about the person’s work history? Ifthere’s a less risky way to obtain such information, employersmay be wise to do the extra legwork and save the legal fees.■ Medical tests. The ADA severely restricts the use of medicaltests in hiring. EEOC regulations limit medical testing untilan employer makes a “real job offer”: i.e., after “the employer hasevaluated all relevant non-medical information which it reasonablycould have obtained and analyzed prior to giving the offer.”Specifically, medical tests are the last step in the hiring process.EEOC enforcement guidance defines a medical test or examinationas “a procedure or test that seeks information about anindividual’s physical or mental impairments or health.” Whendetermining whether a test (or procedure) is a medical examination,the EEOC looks at whether the test:• Is administered by a health care professional• Is interpreted by a health care professional• Is designed to reveal an impairment or physical or mentalhealth• Is invasive• Measures performance of a task or a person’s physiologicalresponses to performing it