Psychological Tests To Assess Candidacy For Promotion. In Karraker v. Rent-A-Center, Inc., employees claimed that the company's use of the Minnesota Multiphasic Personality Inventory (MMPI) violated the ADA's prohibition on use of "medical examinations" as a condition of employment. They asserted that the the MMPI was being used to screen out individuals with mental impairments. The U.S. Court of Appeals for the Seventh Circuit looked to EEOC Guidelines regarding "medical examinations," noting the distinction between psychological tests designed to identify a mental disorder or impairment (prohibited "medical exams" under the ADA) and those that merely measure personality traits such as honesty, preferences, and habits (not prohibited). Depending on the method of scoring and level of analysis, the MMPI could be used for either purpose - i.e., to merely evaluate personality traits or to identify mental impairments. The Court determined that the company used the test in a manner that, at least in part, focused on revealing mental illness and that it had the effect of diminishing promotional prospects for those with a mental disability. Therefore, use of the test violated the ADA.

Employee "Regarded As" Disabled. In Kelly v. Metallics West, Inc., the U.S. Court of Appeals for the Tenth Circuit affirmed a jury verdict for the plaintiff based on discrimination and retaliation claims under the ADA's "regarded as" language. Kelly was a customer service supervisor who developed a blood clot in her lung, which required hospitalization and several weeks off work. She returned with a doctor's note describing her need for a portable supplemental oxygen device that could be kept next to her desk. Her employer said no and encouraged her to remain off work until she could return without such assistance. Kelly complied, but when she later returned she experienced severe shortness of breath and headaches. When she presented a second doctor's note stating her need for supplemental oxygen, the employer again said no and (most unwisely) wrote in a letter that, while she had been an exceptional employee, management considered her an "unstable" employee due to her health and decided it was best to replace her. Kelly sued, and a jury found in her favor on a theory that, even if her breathing condition was temporary and could be alleviated by use of portable oxygen, her employer nonetheless "regarded" Kelly as disabled and terminated her employment as a result. On appeal, the Tenth Circuit concluded that Kelly fit the ADA's definition of a "qualified individual with disability" because she was "regarded as" disabled but could with reasonable accommodation perform the essential functions of her job. The court noted the "bizarre" result that the ADA's "regarded as" language can create greater protection than a person who actually is disabled. But it reasoned that, even if Kelly was not actually disabled, she suffered real prejudice as a result of the employer's perception of her abilities.

Employee Not Actually Disabled. A contrasting situation was presented in Rooney v. Koch Air, LLC, recently decided by the U.S. Court of Appeals for the Seventh Circuit. After undergoing two back surgeries, Rooney returned to full-time work in his customer assurance manager position, but refused to perform jobsite visits. One of his job duties was to give technical assistance to dealers of the company's heating and air conditioning products. Rooney claimed he could not bend or climb ladders as required during job-site visits. Rooney was eventually offered a lower position that would not require job-site visits, but he rejected the offer and resigned. He sued, claiming he had an ADAprotected disability and that he had been constructively discharged. The Seventh Circuit disagreed, finding that Rooney's claimed inability to perform one task (job-site visits) did not constitute a substantial limitation on the major life activity of working. The court also concluded that, because the job-site visits were an essential function of the position, he was not meeting his employer's legitimate expectations, and consequently did not make out a prima facie case of ADA discrimination.

Jay C. Boger

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