Equal employment challenges employers

by Richard Alaniz
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Employers who rely on “qualification standards” in hiring, promoting and reassigning workers need to understand how federal regulators and courts are interpreting these job tests in light of the ADA Amendments Act of 2008 (ADAAA).

Under the ADAAA, employers cannot use job qualification standards or tests to screen out individuals with disabilities unless the standards are “job-related” and “consistent with business necessity.” Even if employers can prove that qualification standards are necessary to hire employees for specific jobs, if an employer takes an unfavorable action against an individual who cannot meet the standards, the employer also should be able to demonstrate that this failure to meet the standard cannot be remedied with a reasonable accommodation. In addition, companies must make a conditional offer of employment before requiring applicants to undergo tests.

Equal Employment Opportunity Commission (EEOC) regulations have considered how “uncorrected vision” tests fit with qualification standards. Those who are screened out of jobs because they can’t pass such tests can be considered as “regarded as” having a disability by the EEOC, and an employer may face liability unless it can show that the vision requirement is both job-related and consistent with business necessity.

In “Iverson v. City of Shawnee, Kan.,” the 10th Circuit ruled against a defendant who claimed her employer did not make a reasonable accommodation for her when she could no longer physically do her job. However, she didn’t point to any accommodations her employer could have made, and the court ruled in favor of the city.

What employers should do

In light of the regulations, court rulings and EEOC opinions, employers need to understand how they can protect themselves from discrimination claims while maintaining appropriate standards.

● Review qualification standards – Employers don’t have to toss out qualification standards, as long as employers can articulate why qualification standards are job-related and consistent with business necessity and can show that the need for the employee to meet the standard cannot be remedied with a reasonable accommodation.

Before requiring job applicants to undergo qualification standards, there needs to be a conditional job offer on the table. When employers give these types of tests to job applicants, they should make sure every person conditionally hired for a position with that job description undergoes the tests.

● Create an “interactive process” – Courts and federal regulators will carefully monitor whether employers made a real effort to accommodate employees and job applicants, not just whether employees and job applicants met strict definitions regarding a “disability.”

● Stay up to date on court rulings and EEOC regulations – The courts are beginning to see an increasing number of cases under the ADAAA. Companies should be tracking these developments, along with EEOC actions. Companies should also regularly consult with attorneys and HR staff who are knowledgeable about the ADA.

Under the ADAAA, the burden is now on employers to show that they tried to work with employees and job applicants who claim they are disabled. When using qualification standards, employers need to be sure that those tests are absolutely necessary to do a job, and that a would-be employee who can’t pass such a test could not do the job as the employer requires even with a reasonable accommodation.

Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston.

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