A recent federal court opinion on the wrongful use of the MMPI as an employment screening tool could have big implications for churches, mission agencies, and counseling clinics throughout the country. The 7th Circuit U.S. Court of Appeals (Karraker, et al., v. Rent-ACenter, Case No. 04-2881, 6-14-05) ruled in June 2005 that the MMPI was a medical/psychiatric test and therefore impermissible for use as a pre-employment screening tool under the Americans with Disabilities Act of 1990 (ADA).
Three brothers employed by a car rental agency sued their employer for failing to advance into management positions at the business. The employer used the MMPI as a management screening tool, and failed to advance the brothers after they showed a number of elevated scales. The lower (federal district) court held for the employer, accepting the argument that the vocational uses of the test did not pathologize the results, and therefore, stricter ADA standards did not apply.
The appeals court reversed this decision, holding that the clinical/vocational distinction was without merit"the results were essentially the same. Scales that purported to show such things as paranoia, hysteria, hypochondriasis, depression, mania, psychopathic deviance (my favorite scale, if you must know), and similar descriptors of psychopathology were clearly medical and psychiatric in nature. And since the test has long been used to evaluate psychopathology and obtain a diagnosis for mental illness, it was judged a medical exam that brought the ADA into play.
Under the ADA, no medical or psychiatric exams are allowed to be used as a pre-employment screening device" they are deemed too discriminatory for such use on their face. They may only be used (1) if the demands of the job can be reasonably tied to the traits revealed by the exam, and (2) the exam is administered only after a conditional offer of employment has been made and the test is the last hurdle before a final job offer is delivered.
A best-case response, if this new law applies, would be to drop or substitute the MMPI with some other instrument and avoid attachment of ADA rules altogether, as they can be quite burdensome for many employers. However, for churches, mission agencies, schools, and clinics who use and want to maintain the MMPI as a legitimate part of the testing battery used to evaluate candidates for ministry and professional practice, I would recommend this sixstage review of your organizational policy and procedure:
Does the law apply to you? Recognize that this new ruling is law only in those states of the 7th Circuit"Illinois, Indiana, and Wisconsin. Technically, unless you reside or do business in them, it does not apply to those states and ministries outside the 7th federal circuit.
Of course, this limitation applies only if your ministry reach is local or regional, and does not have a national scope in its ministry/business reach. However, I believe that other federal courts will follow the precedent and reasoning of this decision; therefore I encourage all ministries to adjust their policies and procedures accordingly, as if ADA law will eventually apply to your work.
Distinguish uses. Distinguish clearly the vocational from the clinical uses of the MMPI (an argument that, although reversed on appeal, carried the day in the lower district court; therefore, it should be seen as a weak alternative to these other suggestions). Note the practical differences in both procedure and effect with such distinction.
Link test with job requirements. Tie the clinical aspects of the MMPI together with the bona fide job requirements of your ministry. The Court made it clear that the defendant employer might have prevailed in the case if it had shown proof that the use of the test was job related and consistent with business necessity. Therefore, by describing the necessity of working in a stressful environment and the need for maintaining good judgment under harrowing conditions, many of the MMPI scales now become relevant.
Change procedure. Forego use of the MMPI pre-employment, using it to evaluate final candidates after a conditional offer of employment has been made. This procedural change puts use of the MMPI as the last step in the chain of evaluative action, instead of coming early on. To reiterate, medical and psychiatric tests are allowable under the ADA when (1) they are ˜job-related as noted above, and (2) they are applied as a final step, after an applicant has been duly evaluated and given a conditional offer of employment.Substitute or add tests. Substitute the MMPI or add to the battery tests that reveal less psychopathology and more strength-based personality traits, such as the Taylor-Johnson, the Myers-Briggs, the 16PF, or the NEO. Personality tests that have a solid history of revealing normal"as opposed to pathological"personality are much more likely to pass legal muster under the ADA.
I especially encourage use of the NEO as it is based on the research validated five-factor model of personality" evaluating extraversion, agreeableness, openness to new experiences, conscientiousness, and neuroticism"and is therefore biased toward normal vs. disordered or pathological personality. One is also able to make fairly reliable inferences about disordered tendencies by using the NEO, and preferred profiles for various job or ministry roles can be reliably constructed from this instrument. Working with a psychologist or psychometrician experienced with the NEO will help you develop and effectively use a new screening process.
Informed consent. Have all applicants sign a consent form that gives their permission to use the particular protocol you have developed and waives any litigious or retaliatory action if not chosen (make sure you put the dispute resolution process in your favor by having them commit to mediation and arbitration before any resort to litigation).
Although no one can give valid consent to illegal or unethical practices (and cannot be asked to do so), it is permissible to query about criminal history and psychopathological traits when honesty and character are premium requirements for a position. It simply must be done in the right manner. Online counseling is always available to help you out.
Psychiatric disabilities have long been an acceptable employment prejudice, and are rightly included under the purview of the ADA. However, defining who and under what conditions a genuine clinical disorder exists is not something that the ADA (and the lawyers and judges who apply it) should be allowed to have final say. Mental health professionals must become more assertive in defining the scope and application of ADA rules on psychiatric disability, or we will increasingly find that untrained judges and lawyers opinions will be superseding ours with unjust and often ludicrous results.
This is not that kind of case, but it represents just the tip of the iceberg of ADA litigation that is now reshaping the way psychiatric disability"and, more generally, mental health and mental illness"is being legalized and understood throughout America.
_George Ohlschlager, J.D., LCSW, is Senior Editor and Writer of Christian Counseling Today and other AACC publications; and is Executive Director of the American Board of Christian Counselors, the AACC-affiliated national counselor credentialing and program accreditation agency. He chairs the AACC Law & Ethics Committee, maintains a nationwide clinical/ethics/forensic consulting and training practice, and teaches in the Liberty University Center for Counseling and Family Studies, and at St. Petersburg Theological Seminary.
