Part 4: Legal Issues Related to Assessments
I see a number of legal issues around assessments. Some assessments are designed to give insight into personality or leadership styles. Those are fine. Others, like the MMPI, are designed to identify pathology. These raise a host of problems. Some of these problems are addressed in the regulations that interpret the Americans with Disabilities Act, so we’ll refer to those. One caveat here is that the ADA might not apply at all because the mission is bringing people into ministerial positions. Assuming for the moment that it applies at least in some cases, here are some thoughts.
Evaluate your tests before you evaluate your people
Is the test legitimate to use in evaluating people for employment fitness? Using a test in a way that doesn’t fit its designated purpose makes the test invalid. The MMPI is one of these. There are many useful instruments, which I’ll leave to you psychologists to explain.
Pre-employment examinations for those who like to live dangerously
At what stage in the process is the mission using the test? If it is doing full-bore pre-employment evaluations, it is taking a risk.
Since testing that identifies disorders and disabilities is considered a medical examination under the ADA, this type of testing should not be used before the employment offer. The relevant law says that a pre-employment examination (the psychological testing) or inquiry (could be either the psychological analysis or the interview) may not ask whether an applicant is an individual with a disability (or the nature and severity of the disability). 29 CFR § 1630.13(a).
What can the mission do at the pre-employment stage? It may ask about the applicant’s ability to perform job-related functions. It may ask the applicant to describe how he or she will perform these job-related functions (with or without a reasonable accommodation. 29 CFR § 1630.14(a). This allows for personality or characteristic tests, but not for tests seeking to identify psychological disorders.
What if the mission does a pre-employment psychological examination anyway? Besides the legal liability to the organization, there are also ethical issues for the psychologist doing the testing. This person could not only incur some personal liability, but might be putting his or her license at risk.
After the conditional employment offer
Third, what can the mission do once the person has received an employment offer?
Generally, it still cannot require a medical examination of an employee or ask whether the person is an individual with a disability (or the nature or severity of the disability). 29 CFR § 1630.13(b).
But it has some leeway. After it has made an offer of employment—and before the person begins the employment duties—it may condition the offer on the results of a medical examination, if and only if all entering employees in the same job category receive that examination. 29 CFR § 1630.14(b). So as a mission, if all candidates must take a medical examination, the mission may require that.
But it should be careful how it gathers and keeps data! Any information gathered about medical condition and history must be “collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 29 CFR § 1630.14(b)(1) (also per HIPAA). Again an exception: the mission is allowed to inform supervisors and managers of necessary restrictions or accommodations, and may alert safety personnel. 29 CFR 1630.14(b)(1).
If the mission uses the information that it gathers to screen out any employee with disabilities, the “exclusionary criteria must be job-related and consistent with business necessity.” Plus, it must be clear that the person cannot perform the essential job functions even with reasonable accommodation. 29 CFR § 1630.14(b)(3). That means that the job descriptions for various fields must be written quite clearly if the mission believes it will need to screen out persons with physical or mental disabilities. It is much more convincing to have detailed job descriptions prepared ahead of time.
You gave an example in the previous blog about screening out missionaries who were on antidepressants. It is difficult to see how that would be job-related and consistent with business necessity.
Another area of exception for missions might be dysfunctions that have spiritual implications. For instance, a physical or mental disorder might create extreme angry outbursts or depression that led to abusive relationships. Worse yet might be sexual acting out. So it might be possible to discipline certain conduct without focusing on the disability. However, we would both hope that a person suffering such issues would be offered support and treatment.
One more word of caution to missions—they should comply with the Genetic Information Nondiscrimination Act as to what they ask and how they gather and handle information.
Can you test your current employees?
If a mission has concerns about current employees, what can it do?
If it has a reason to require a medical examination or inquiry (including psychological), it may do so if the requirements are job-related and consistent with business necessity. 29 CFR § 1630.14(c). So it had better be able to define why requiring such a test involves the employee’s ability to perform job-related functions. This becomes important if one of its employees has an issue like what we loosely called in the old days a “nervous breakdown,” a common hazard of the mission field.
Again, any information gathered must be collected and maintained separately and confidentially, as we discussed before. 29 CFR § 1630.14(c). One aspect that may be useful on the mission field is that supervisors and managers may be informed as to the employee’s restrictions or accommodations. That allows for some supervision or a safety plan if a person has certain mental illness concerns.
Another possibility is that problem employees may be given a “fitness for duty” screening by a trained vocational psychologist. This type of screening evaluates conduct and personality and may give a sense of whether the person can continue in the job. This would usually be a voluntary alternative in the disciplinary process.
These are all interesting issues, and I’m going to ask our mutual friend Dr. R.P. Ascano to comment further in the next post.
Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations