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considered a medical examination if it provides evidence that would lead to a diagnosis or the identification of mental disorder or impairment

Consider the following example: A psychological test (like the MMPI) is constructed to diagnose mental illnesses, but a particular employer says she does not use the test to disclose mental illness. Instead, the employer says she uses the test to disclose preferences and habits of job applicants. However , the test also is interpreted by a psychologist working for the company . In addition, the test is routinely used in clinical settings to provide evidence that would lead to a diagnosis of a mental disorder or impairment (for example, whether a person has paranoid tendencies, or is depressed). Under these conditions, this test might be considered a medical examination and may violate the ADA laws.

The use of clinically oriented personality measures designed primarily to diagnose psychopathology, such as the MMPI, would probably violate the ADA's prohibition on medical examinations. Consequently , employers should avoid the MMPI and similar measures for selection purposes. Tests of normal-range personality functioning, and measures of integrity, have never been considered equivalent to a medical examination.

Right to Privacy

Perhaps the lar gest issue of legal concern for employers using personality testing is privacy. The right to privacy in employment settings grows out of the broader concept of the right to privacy . Cases that charge an invasion-of-privacy claim against an employer can be based on the federal constitution, state constitutions and statutes, and common law.

In the case of McKenna v. Fargo a federal district court in New Jersey upheld the right of a city fire department to use personality testing to select applicants fo the position of firefight . The case was based on an invasion-of-privacy claim. The court determined that, although the test did infringe on the applicant' s right to privacy, the city's interest in screening out applicants who would be unstable under the pressures of the job was suf ficient to justify the intrusion. The McKenna ruling establishes that personality test questions that inquire about an applicant' s sexual, religious, or political attitudes may intrude on an applicant' s right to privacy. However, the ruling also recognizes that a government can justify this intrusion if it has a compelling need, such as the need for firefighters who can protect the safety of the publi

In another case, a California Court of Appeals found that certain items on a personality test administered to security guard applicants violated the state constitutional right to privacy. In Saroka v. Dayton Hudson the plaintiff had applied for a security guard position with the Target Stores chain and was required to complete both the MMPI and the California Psychological Inventory (CPI). The two tests are widely used to assess personality traits and adjustment, and they contain items asking about very personal topics such as religion, sexual behavior , and political beliefs. The plaintiff argued that the questions required him to reveal very private thoughts and highly personal behaviors and were not job-related. The court agreed, finding that certai questions invaded the applicants' privacy because they asked about sexual and religious preferences. Target tried to mount a defense by ar guing that they had a compelling business interest in the outcome of the selection process. The court acknowledged that Target had an interest in employing emotionally stable persons as store security of ficers. Howeve , the court ruled that Target did not show how questions about an applicant' s religious beliefs or sexual orientation would have any bearing on their emotional stability . Because Target Stores could not provide evidence on the construct or criterion validity of the specific items in question, they lost the case

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