They can, if they reveal enough information about candidates’ mental states.

In one court case, three rejected job applicants sued after they failed a pre-employment personality test given by the employer.

The company gave the tests to determine whether applicants had the right personality traits for the job.

The problem: The test was similar to those used by psychologists to determine if patients suffer from mental disorders such as depression, hysteria and paranoia. For example, applicants were asked if they:

• hear voices without knowing where they are coming from
• have fits of laughing and crying that they cannot control, and
• have a habit of counting things that are not important.

Therefore, the applicants claimed, the test was a medical examination, and the company violated the Americans with Disabilities Act by giving applicants a medical exam before they were offered jobs.

The company argued that the test wasn’t a medical exam because it wasn’t interpreted by a doctor.

But the court disagreed. Since the test revealed symptoms of personality disorders, it was considered a medical examination under the ADA, and using it before jobs were offered was a violation of the law.

Cite: Karraker v. Rent-a-Center, Inc.

The key is distinguishing between personality tests and medical examinations that can be used to diagnose psychological disorders.

How can companies tell the difference? The EEOC says tests may be illegal if they are:

• administered by a healthcare professional
• interpreted by a healthcare professional
• designed to reveal a physical or mental impairment
• detailed enough to be considered “invasive”
• designed to measure an applicant’s “psychological response to performing a task” (rather than “an ability to perform the task”)
• normally given in a medical setting, and
• administered using medical equipment.

Normally, courts will look at a combination of those factors before ruling against a company — but sometimes one is enough.

For example, in this case the company lost because it used a test that was normally administered in a medical setting — even though the results weren’t interpreted by medical professionals.

Because of the danger of those types of lawsuits, its important for employers to:

• examine what information their testing may uncover
• make sure the tests are job-related and reveal traits relevant to the specific positions they’re used for, and
• only use tests that have been validated as ADA-compliant.