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Adverse impact as disability discrimination: Illustrating the perils through self-control at work

In their focal article, Melson-Silimon, Harris, Shoenfelt, Miller, and Carter (2019) discuss the risk that personality testing might be challenged under the Americans with Disabilities Act of 1990 (ADA) due to the Act’s prohibition against pre-offer medical examinations. Although the authors provide a compelling argument that normal and abnormal personality characteristics exist on a common continuum, their argument regarding the legal risks rests on speculation with regard to how the courts might reinterpret such tests in the future. We accomplish the following goals in this article: (a) discuss our position regarding Melson-Silimon et al.’s (2019) claim concerning personality testing and ADA (b) discuss disparate impact as a potentially larger risk associated with personality testing in employment contexts using both the employer and employee/applicant perspective, and (c) use self-control to illustrate the above in the context of job relatedness in job analysis. Our position is that there is no indication in current Equal Opportunity Employment Commission (EEOC) guidelines (EEOC, 2000) or the scant case law (as reviewed in the focal article) to suggest that the use of broad normal-range personality tests will be viewed as medical examinations. If a test is being used in a manner that resembles a clinical diagnosis, then it would be considered a medical exam and prohibited before a conditional job offer (EEOC, 2000). The mere existence of a characteristic on the same continuum as a disability does not imply that the test is being used for clinical diagnosis. There are many characteristics on which an extreme value could be considered a disability (as in the case of cognitive and physical abilities), and there is no indication in the EEOC guidelines or the case law that job-related tests of these characteristics would be considered a medical exam.