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PSY 6430PSY 6430Unit 3 Unit 3

Legal Issues, cont. &Legal Issues, cont. &

The Americans withThe Americans with

Disabilities ActDisabilities Act

Schedule:

Monday & Wednesday: LectureExam: Monday, Feb. 16No class: Wednesday, Feb. 18

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SO1&2: The importance of the Uniform SO1&2: The importance of the Uniform Guidelines on Employee Selection ProceduresGuidelines on Employee Selection Procedures

1.1. These guidelines were These guidelines were ““hammeredhammered”” out and approved out and approved by all of the federal agencies involved in EEO and AA by all of the federal agencies involved in EEO and AA compliance (1978)compliance (1978) EEOC, Civil Service Commission, Dept. of Justice, and Dept. EEOC, Civil Service Commission, Dept. of Justice, and Dept.

of Laborof Labor

Prior to this, both EEOC and Dept. of Labor (OFCCP) Prior to this, both EEOC and Dept. of Labor (OFCCP) had issued separate guidelines that conflicted.had issued separate guidelines that conflicted.

Selection specialists could not conform to both with Selection specialists could not conform to both with respect to some procedures.respect to some procedures.

Imagine the confusion.Imagine the confusion.

(start with the Uniform Guidelines, review some important court cases related to selection, and then move onto the ADA.Sos on text: learn full name; I was actually in this situation at PA - we were a semi-private, semi-public organization, subject to both EEOC andOFCCP guidelines, yet we couldn’t satisfy both. And, remember what the stakes are for violating the law….)

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SO2: Uniform Guidelines on Employee SO2: Uniform Guidelines on Employee Selection Procedures, cont.Selection Procedures, cont.

2.2. While not legally binding, the courts give While not legally binding, the courts give ““great great deferencedeference”” to the guidelines. The courts have to the guidelines. The courts have ruled that these guidelines will be used as a ruled that these guidelines will be used as a ““checklistchecklist”” for the appropriateness of selection for the appropriateness of selection procedures.procedures.

(when we get to the professional development/requirements for selection procedures, particularly the job analysis, they are based on theseUniform Guidelines).

SO3: NFE, Selection instruments coveredSO3: NFE, Selection instruments covered

The EEO & AA laws cover any selection The EEO & AA laws cover any selection procedure used, not just selection tests:procedure used, not just selection tests: Application blanksApplication blanks Academic degree requirementsAcademic degree requirements Job interviewsJob interviews Performance appraisals used for promotion decisionsPerformance appraisals used for promotion decisions Social media web sites of applicants!Social media web sites of applicants!

Google searches and social media web site searches can Google searches and social media web site searches can get organizations into a great deal of trouble because those get organizations into a great deal of trouble because those making selection decisions can become aware of protected making selection decisions can become aware of protected characteristics of applicants – more on this in U8characteristics of applicants – more on this in U8

4(next few Sos, just some details from the guidelines that are particularly important)

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SO4: Restrictions on use of skills and SO4: Restrictions on use of skills and abilities in selection abilities in selection

1.1. If they can be learned during a relatively If they can be learned during a relatively brief training period - within 6 months – brief training period - within 6 months – cannot test for themcannot test for them

Makes perfect sense from a selection Makes perfect sense from a selection standpointstandpoint

Has implications for job analysis so we will be Has implications for job analysis so we will be coming back to this, but your job analysis must coming back to this, but your job analysis must identify not only which KSAs are required for identify not only which KSAs are required for effective job performance, but also which can effective job performance, but also which can be learned on the job (so they can be excluded be learned on the job (so they can be excluded from your selection procedures)from your selection procedures)

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SO4: Restrictions on the use of skills SO4: Restrictions on the use of skills and abilities in selectionand abilities in selection

2.2. KSAs from higher level jobs are only acceptable ifKSAs from higher level jobs are only acceptable if The The majoritymajority of job incumbents actually assume higher of job incumbents actually assume higher

level positionslevel positions If they so do within a reasonable period of time - Uniform If they so do within a reasonable period of time - Uniform

Guidelines, within five yearsGuidelines, within five years If you are hiring assembly line workers, 40 incumbents, but If you are hiring assembly line workers, 40 incumbents, but

only 2 supervisory positions, and only a few ever become only 2 supervisory positions, and only a few ever become supervisors - NO!supervisors - NO!

If it takes an assembly line worker more than 5 years to If it takes an assembly line worker more than 5 years to become a supervisor - NO!become a supervisor - NO! If supervisory position requires a BA, but the assembly line If supervisory position requires a BA, but the assembly line

worker position does not - you cannot require your assembly worker position does not - you cannot require your assembly line workers to have BAsline workers to have BAs

(Many companies want to test for higher level skills, particularly if there is a strong hire from within policy. However…political hot potato in orgs)

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SO5: Three cut-off score proceduresSO5: Three cut-off score procedures

Least restrictive: Minimum cut-off scoreLeast restrictive: Minimum cut-off score Minimum score above which you consider all Minimum score above which you consider all

applicants equally qualifiedapplicants equally qualified Pass/fail systemPass/fail system

Type of validity procedure: Empirical or contentType of validity procedure: Empirical or content Next restrictive: BandingNext restrictive: Banding

Establish ranges of scores and group applicants in Establish ranges of scores and group applicants in those ranges: Every applicant is equally qualified those ranges: Every applicant is equally qualified within each bandwithin each band

Type of validity procedure: Empirical onlyType of validity procedure: Empirical only

(type of cut-off score, major implications for the type of validity procedure you use and hence the type of job analysis; cover this now and again later)

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SO5: Three cut-off score procedures, SO5: Three cut-off score procedures, cont.cont.

Most restrictive: Rank order applicants based Most restrictive: Rank order applicants based on scoreson scores Select top person first, then the next one, etc.Select top person first, then the next one, etc. Type of validity procedure: Empirical onlyType of validity procedure: Empirical only

(managers have trouble with this one, by the way – even if the systems allows input/interview with respect to who is going to be working for them)

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SO5: Three cut-off score procedures, SO5: Three cut-off score procedures, cont.cont.

Must use empirical validity to determine job Must use empirical validity to determine job relatedness of the selection procedure ifrelatedness of the selection procedure if BandingBanding Rank orderingRank ordering (and of course, if there is adverse impact)*(and of course, if there is adverse impact)*

Why? Two requirements: Uniform Guidelines stateWhy? Two requirements: Uniform Guidelines stateIf you use these approaches not only do you have to (a) If you use these approaches not only do you have to (a) show that show that your selection procedures are job relatedyour selection procedures are job related, but also (b) , but also (b) that those that those who score higher on the exam/procedure will also perform better who score higher on the exam/procedure will also perform better on the jobon the jobThere is only ONE way to do that - statistics, empirical validationThere is only ONE way to do that - statistics, empirical validation

(often ignored by organizations)

*Remember, the laws are only relevant if adverse impact exists

SO6: NFE Paper trailsSO6: NFE Paper trails

Documentation of everything you do in selection is criticalDocumentation of everything you do in selection is critical If someone makes a charge of unfair discrimination and If someone makes a charge of unfair discrimination and

you cannot document your job analysis procedures, your you cannot document your job analysis procedures, your determination of what selection procedures to use, and determination of what selection procedures to use, and your recruitment and selection procedures you will lose!your recruitment and selection procedures you will lose!

You have learned enough at this point to know that some You have learned enough at this point to know that some of these cases take 10-15 years to resolve and you may of these cases take 10-15 years to resolve and you may have left the organization or joined the organization after have left the organization or joined the organization after the case began and hopefully the person before you left the case began and hopefully the person before you left documentation…documentation…

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(I can’t think of a good so for this so NFE but…)

SO7: Griggs v. Duke Power, 1971SO7: Griggs v. Duke Power, 1971 Case started in 1967Case started in 1967 Thirteen black employees filed a law suit for the Thirteen black employees filed a law suit for the

company’s operations unitscompany’s operations units Selection instruments included a high school Selection instruments included a high school

diploma, mechanical aptitude test, and a general diploma, mechanical aptitude test, and a general intelligence testintelligence test

Screened out a much higher proportion of blacks Screened out a much higher proportion of blacks than whitesthan whites

Company hadn’t made any attempts to validate Company hadn’t made any attempts to validate the selection proceduresthe selection procedures

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(Sos ask you to learn some findings from some of the major cases: the first major and most influential court case – started it all:Every selection specialist knows about this case; three major rulings, well before the uniform guidelines in 1978)

SO7: Griggs v. Duke Power, 1971SO7: Griggs v. Duke Power, 1971

It established adverse impact as a form of unfair It established adverse impact as a form of unfair discriminationdiscrimination That is, lack of discriminatory That is, lack of discriminatory intentintent was not a was not a

sufficient defensesufficient defense Selection procedure must be job related if adverse Selection procedure must be job related if adverse

impact occursimpact occurs Employer bears the burden of proof when adverse Employer bears the burden of proof when adverse

impact occursimpact occurs Established the shifting burden of proof for adverse Established the shifting burden of proof for adverse

impact cases which remains in tact today.impact cases which remains in tact today.

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(three major rulings from that case)

SO10: Ricci v. DeStefano, 2009SO10: Ricci v. DeStefano, 2009

New Haven Civil Service Board administered a New Haven Civil Service Board administered a promotional exam for lieutenant and captain fire promotional exam for lieutenant and captain fire fighter jobsfighter jobs

After the exams had been administered and After the exams had been administered and scored, the Civil Service Boardscored, the Civil Service Board Discarded the exams because their use would have Discarded the exams because their use would have

resulted in adverse impact for black applicants andresulted in adverse impact for black applicants and Blacks threatened to file a law suitBlacks threatened to file a law suit

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(extremely interesting case)

SO10: Ricci v. DeStefanoSO10: Ricci v. DeStefano

Captain exam (7 vacancies)

Whites Blacks Hispanics

Applicants 25 8 8

Passing score 16 3 3

Top 9 scores 7 0 2

Lieutenant exam (8 vacancies)

Whites Blacks Hispanics

Applicants 43 19 15

Passing score 25 6 3

Top 10 scores 10 0 0

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Here are the actual numbers:No blacks were eligible for promotion to captain or lieutenant.

SO10: Ricci v. DeStefanoSO10: Ricci v. DeStefano

Whites and Hispanics subsequently filed a law Whites and Hispanics subsequently filed a law suitsuit

Claimed the decision to discard the exam Claimed the decision to discard the exam violated Title VII because it was based on race violated Title VII because it was based on race and colorand color

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SO10: Ricci v. DestefanoSO10: Ricci v. Destefano

2006: District Court upheld the right of CSB to 2006: District Court upheld the right of CSB to refuse to certify the results of the test on the refuse to certify the results of the test on the grounds it would result in adverse impactgrounds it would result in adverse impact

2008: Second Circuit Court of Appeals upheld 2008: Second Circuit Court of Appeals upheld the District Court ruling, stating that the CSB the District Court ruling, stating that the CSB was was ““in an unfortunate position of having no in an unfortunate position of having no good alternatives.good alternatives.””

2009: Supreme Court ruled 5-4 in favor of the 2009: Supreme Court ruled 5-4 in favor of the white and Hispanic plaintiffs, not the CSBwhite and Hispanic plaintiffs, not the CSB

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SO10: Ricci v. DestefanoSO10: Ricci v. Destefano Main reason (and one for the exam)Main reason (and one for the exam)

If there is adverse impact, the threat of a law If there is adverse impact, the threat of a law suit is not sufficient reason to discard the exam suit is not sufficient reason to discard the exam

Court also statedCourt also stated

If the test was job-related, then adverse impact would If the test was job-related, then adverse impact would be OK (fair discrimination), and it appeared that the be OK (fair discrimination), and it appeared that the tests were professionally developed and job relatedtests were professionally developed and job related

17(another slide on this)

SO10: Ricci v. DestefanoSO10: Ricci v. Destefano What happened nextWhat happened next

New Haven reinstated the examination results and New Haven reinstated the examination results and promoted 14 of the 20 firefighters within months of the promoted 14 of the 20 firefighters within months of the decision. decision.

The city settled the lawsuit by paying $2 million to the The city settled the lawsuit by paying $2 million to the white and Hispanic firefighters who brought the lawsuit, white and Hispanic firefighters who brought the lawsuit, enhancing their pension benefits by millions of dollars, enhancing their pension benefits by millions of dollars, and paying their attorney $3 million in fees and costs. and paying their attorney $3 million in fees and costs.

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(ouch)

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ADA IntroductionADA Introduction ADA was passed in 1990, with the parts related to ADA was passed in 1990, with the parts related to

selection going into effect in 1992selection going into effect in 1992 Profound effect on selectionProfound effect on selection

Become one of the most controversial pieces of Become one of the most controversial pieces of legislation ever passedlegislation ever passed

Supreme Court started hearing cases in 1999, and Supreme Court started hearing cases in 1999, and made some clarifying decisionsmade some clarifying decisions

Many of those decisions have now been negated by the Many of those decisions have now been negated by the ADA Amendments Act of 2008ADA Amendments Act of 2008

Became effective Jan. 1, 2009Became effective Jan. 1, 2009 Many law suits about the ADA Amendments are just Many law suits about the ADA Amendments are just

now being resolved and making their way into the now being resolved and making their way into the higher courts – so some of this is stayed tuned….higher courts – so some of this is stayed tuned….

(moving onto ADA: no controversy over the goals of the Act, but in provisions/interpretations - very difficult for organizations to do the right thing; Don’t like the way the text handles this; ADA first as if the provisions still stand, then talk briefly about ADAAA, confusing: 4 major issues/problems)

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Four Major IssuesFour Major Issues

Who is actually covered by the Act?Who is actually covered by the Act? EEOC guidelines vs. Supreme Court decisionsEEOC guidelines vs. Supreme Court decisions Vague language about what Vague language about what ““mental disabilitiesmental disabilities””

meansmeans Burden for companies because each and every Burden for companies because each and every

case must be handled on an individual basiscase must be handled on an individual basis

(list the four issues here, then look at each in more detail)

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SO11A: First Controversy: Who is covered?SO11A: First Controversy: Who is covered?

Has a physical or Has a physical or mentalmental impairment that impairment that substantiallysubstantially limits one or more limits one or more major life major life activitiesactivities,,

Has a record of such impairment, orHas a record of such impairment, or Is Is regardedregarded as having an impairment as having an impairment

If an organization assumes someone has AIDS who If an organization assumes someone has AIDS who does not, that person is covered by ADAdoes not, that person is covered by ADA

Case won by a person who was misdiagnosed as Case won by a person who was misdiagnosed as learning disabled; she was regarded as learning learning disabled; she was regarded as learning disabled by the company and thus was covereddisabled by the company and thus was covered

An individual who:

(have to start with definition, which I ask you to learn as SO12)

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SO11A, continuedSO11A, continued

Most of the lawsuits filed have been about Most of the lawsuits filed have been about who is covered by the actwho is covered by the act Who is actually considered to have a Who is actually considered to have a physical physical

or mentalor mental disability that disability that substantiallysubstantially limits one limits one or more or more majormajor life activity life activity

All of the italicized words have been issues of All of the italicized words have been issues of major court cases major court cases

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SO11B: Second Controversy: SO11B: Second Controversy: EEOC guidelines vs. Supreme CourtEEOC guidelines vs. Supreme Court

When new EEO legislation is passed, the EEOC always When new EEO legislation is passed, the EEOC always issues guidelines for companies to followissues guidelines for companies to follow

In the past, the courts have always given In the past, the courts have always given ““great deferencegreat deference”” to those guidelines, basically using them as a checklist to those guidelines, basically using them as a checklist when making decisionswhen making decisions

EEOC guidelines took a strong advocate stance for EEOC guidelines took a strong advocate stance for individuals -VERY liberal guidelinesindividuals -VERY liberal guidelines

The Supreme Court narrowed ADAThe Supreme Court narrowed ADA’’s application, ruling a s application, ruling a manner that decreased the number of individuals who were manner that decreased the number of individuals who were covered (conservative)covered (conservative)

NOT SO WITH ADA

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SO11B, continuedSO11B, continued

First, this caused mass confusion - companies had First, this caused mass confusion - companies had no clue about what was acceptable and what was no clue about what was acceptable and what was not (that is, who was covered and who was not)not (that is, who was covered and who was not)

Second, some district and circuit courts abided by Second, some district and circuit courts abided by the EEOC guidelines and some did notthe EEOC guidelines and some did not

Different laws in different parts of the countriesDifferent laws in different parts of the countries Lower courts that abided by EEOC, found decisions Lower courts that abided by EEOC, found decisions

overturnedoverturned Eventually, this led to the ADA Amendments ActEventually, this led to the ADA Amendments Act

Signed by President Bush (reluctantly) 9/28/08Signed by President Bush (reluctantly) 9/28/08 Took effect Jan. 1, 2009Took effect Jan. 1, 2009

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SO11C: SO11C: What does the ADA Amendments Act do? What does the ADA Amendments Act do? For the most part, the act negates the Supreme For the most part, the act negates the Supreme

Court decisions, which favored organizations, and Court decisions, which favored organizations, and broadens the coverage of ADA back to what its broadens the coverage of ADA back to what its framers called the framers called the ““original intentoriginal intent”” of ADA of ADA

Most of the wording is consistent with the original Most of the wording is consistent with the original EEOC guidelines for ADAEEOC guidelines for ADA

Note that what happened here is similar to what Note that what happened here is similar to what happened with Title VII and the Supreme Courthappened with Title VII and the Supreme Court’’s s rulings that led to the CRA of 1991rulings that led to the CRA of 1991

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NFE: But how coverage changed and the NFE: But how coverage changed and the impact of ADAAA on discrimination claimsimpact of ADAAA on discrimination claims When ADA was passed, it was expected that it would When ADA was passed, it was expected that it would

protect the then estimated protect the then estimated 43 million43 million Americans with Americans with physical and mental disabilitiesphysical and mental disabilities

After the Supreme Court decisions, coverage was narrowed After the Supreme Court decisions, coverage was narrowed to an estimated to an estimated 13.5 million13.5 million individuals individuals

Since ADAAA, with the scope of coverage restored, claims Since ADAAA, with the scope of coverage restored, claims of unfair discrimination under ADA increased by 42% (from of unfair discrimination under ADA increased by 42% (from 2009-2011)2009-2011)

And, in 2013, the American Medical Association classified And, in 2013, the American Medical Association classified obesity as a disease. The EEOC rescinded its previous obesity as a disease. The EEOC rescinded its previous exclusion of obesity, thus even more individuals are now exclusion of obesity, thus even more individuals are now coveredcovered

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Third Major Controversy: Mental DisabilityThird Major Controversy: Mental Disabilityas of 2013, Intellectual Disabilityas of 2013, Intellectual Disability

Framers included mental disabilities, howeverFramers included mental disabilities, however There isn’t any clarifying language about what a There isn’t any clarifying language about what a

mental disability ismental disability is Now, the highest number of cases filed are related to Now, the highest number of cases filed are related to

mental disabilities (SO11D) mental disabilities (SO11D) 11E The framers intended that only disabilities as 11E The framers intended that only disabilities as

defined in the DSM (clinical bible) be considered. defined in the DSM (clinical bible) be considered. However EEOC stated that the DSM is relevant However EEOC stated that the DSM is relevant but not the only diagnoses that may be coveredbut not the only diagnoses that may be covered Chronic lateness syndromeChronic lateness syndrome Sexual impulse control disorderSexual impulse control disorder

(Back to the four major controversies, Diagnostic and Statistical Manual of Mental Disorders)

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SO11F: Fourth major issue, SO11F: Fourth major issue, individual considerationindividual consideration

Each and every case must be handled on an Each and every case must be handled on an individual basis. Why?individual basis. Why? Even individuals who have the same disability are not Even individuals who have the same disability are not

affected the same wayaffected the same way Degree of disability differsDegree of disability differs The extent to which the disability interferes with a The extent to which the disability interferes with a

major life activity differsmajor life activity differs Extent and nature of accommodations that Extent and nature of accommodations that

individuals require in the workplace differindividuals require in the workplace differ

(places considerable burden on the employer; plus the controversies I have just mentioned make it very difficult for companies to know when they areIn compliance)

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SO13: What percentage of workers are SO13: What percentage of workers are disabled and how many disabilities covered?disabled and how many disabilities covered?

According to the definitionAccording to the definition 25%25% of the labor force is covered by ADA of the labor force is covered by ADA At least At least 900900 different disabilities different disabilities

Those numbers make is clear why this Act is so Those numbers make is clear why this Act is so difficult for employers, given that each and every difficult for employers, given that each and every case must be handled on an individual basiscase must be handled on an individual basis

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SO14: (NFE) Who is excluded?SO14: (NFE) Who is excluded? ExclusionsExclusions

Homosexuals and bisexualsHomosexuals and bisexuals TransvestitesTransvestites TranssexualsTranssexuals PedophilesPedophiles ExhibitionistsExhibitionists VoyeursVoyeurs Others with any type of sexual behavior disordersOthers with any type of sexual behavior disorders Compulsive gamblersCompulsive gamblers KleptomaniacsKleptomaniacs PyromaniacsPyromaniacs Those currently using illegal drugs, hence drug testing IS legal Those currently using illegal drugs, hence drug testing IS legal

under ADA (if no longer using, covered) (medical marijuana, later)under ADA (if no longer using, covered) (medical marijuana, later) Active alcoholics Active alcoholics who cannot perform their job duties or who who cannot perform their job duties or who

present a threat to the safety or property of otherspresent a threat to the safety or property of others (otherwise (otherwise covered; and if no longer drinking, covered)covered; and if no longer drinking, covered)

(conservatives required this; Some states, particularly CA have state laws where some of these groups are included in a state ADA act)

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SO15: What in addition to a disability must be SO15: What in addition to a disability must be present for a person to be present for a person to be ““disableddisabled”” under ADA under ADA

Disability must Disability must substantiallysubstantially limit one or more limit one or more major major life activitieslife activities

The ADAAA altered:The ADAAA altered: The definition of The definition of ““substantially limitssubstantially limits”” (SO16A) (SO16A) What constitutes a What constitutes a ““major life activitymajor life activity”” (SO16B) (SO16B)

Adopted the EEOC definitions that the Supreme Court had Adopted the EEOC definitions that the Supreme Court had made more restrictivemade more restrictive

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SO16A: Substantially LimitsSO16A: Substantially Limits

ADAAA defines ADAAA defines ““substantially limitssubstantially limits”” as as ““materially materially restrictsrestricts”” Did not change the wording, just defined itDid not change the wording, just defined it Difference seems subtle to us, but it is not from a legal Difference seems subtle to us, but it is not from a legal

perspectiveperspective

NFE: State laws can be more liberal and when that NFE: State laws can be more liberal and when that is the case, you must follow the state lawsis the case, you must follow the state laws CA and NJ: disability must only CA and NJ: disability must only limitlimit (not substantially (not substantially

limit or materially restrict)limit or materially restrict) Again, itAgain, it’’s a big difference from a legal perspectives a big difference from a legal perspective

(NFE - EEOC prefers state laws, this is why; laws can be more liberal, more inclusive, but they cannot be less inclusive)

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SO16B: Major Life ActivitySO16B: Major Life Activity

ADAAA ADAAA Expanded the definition to the activities identified by the Expanded the definition to the activities identified by the

EEOCEEOC NFE, but caring for oneself, performing manual tasks, walking, NFE, but caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, reading, breathing, sleeping, learning, seeing, hearing, speaking, reading, breathing, sleeping, learning, working, sexual function, reproduction, sitting, standing, bending, working, sexual function, reproduction, sitting, standing, bending, lifting, reaching, thinking, concentrating, and interacting with lifting, reaching, thinking, concentrating, and interacting with othersothers

Added bodily functions (virtually all of them)Added bodily functions (virtually all of them) NFE, but immune system, normal cell growth, digestive, bowel, NFE, but immune system, normal cell growth, digestive, bowel,

bladder, neurological, brain, circulatorybladder, neurological, brain, circulatory

Note that some of these may occur outside of the work place and Note that some of these may occur outside of the work place and thus the employer may have no clue about them - sleeping, cell thus the employer may have no clue about them - sleeping, cell growth, sexual functioning, reproduction. It is up to the employee growth, sexual functioning, reproduction. It is up to the employee to disclose a disability and request accommodation, if necessary.to disclose a disability and request accommodation, if necessary.

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SO17: MitigationSO17: Mitigation A: What is mitigation under ADA?A: What is mitigation under ADA?

Correction or amelioration of a disability due to prosthetic Correction or amelioration of a disability due to prosthetic devices or medicationdevices or medication Eyesight - corrected by glasses Eyesight - corrected by glasses Hearing - corrected by hearing aidsHearing - corrected by hearing aids High blood pressure - corrected by medicationHigh blood pressure - corrected by medication Depression - corrected by medicationDepression - corrected by medication

B: Prior to ADAAA, what was (a) EEOC’s position and B: Prior to ADAAA, what was (a) EEOC’s position and what was the Supreme Court’s position?what was the Supreme Court’s position? EEOC guidelines: Disability must be considered in its EEOC guidelines: Disability must be considered in its unmitigatedunmitigated

state state Supreme Court: Disability must be considered in its Supreme Court: Disability must be considered in its mitigated mitigated statestate

If the disability is mitigated, then the person is not covered by ADAIf the disability is mitigated, then the person is not covered by ADA Supreme Court was more conservativeSupreme Court was more conservative

(This issue caused more than its fair share of trouble; two SC cases are described in the text)

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SO17: MitigationSO17: Mitigation

C: Where does it stand today due to ADAAA?C: Where does it stand today due to ADAAA?Mitigating measures other than ordinary eye Mitigating measures other than ordinary eye glasses and contact lenses shall not be glasses and contact lenses shall not be consideredconsidered

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SO19: Direct threat clauseSO19: Direct threat clause

A: If a person has a disability as defined by ADA, A: If a person has a disability as defined by ADA, but the person poses a direct threat to the safety but the person poses a direct threat to the safety or health of others in the work place or for its or health of others in the work place or for its customers, the employer can legitimately customers, the employer can legitimately notnot hire that personhire that person

B: How did the Supreme Court expand that B: How did the Supreme Court expand that ruling?ruling? The issue: Does the direct threat clause apply to the The issue: Does the direct threat clause apply to the

worker himself worker himself as well as to others?as well as to others?

(not in the text but has become critical – many original rulings of the courts did not take this direct threat clause into consideration; case is next)

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SO19: Direct threat clause case, SO19: Direct threat clause case, this slide NFEthis slide NFE

Chevron v. EchazabalChevron v. EchazabalMan with a liver problem applied to work at Chevron Man with a liver problem applied to work at Chevron where he would be exposed to chemicals/solvents that where he would be exposed to chemicals/solvents that could lead to further and more severe liver problems. could lead to further and more severe liver problems. Chevron did not hireChevron did not hire Interesting, if they hired, and he became seriously impaired, the Interesting, if they hired, and he became seriously impaired, the

company would have to pick up part of the tab through its health company would have to pick up part of the tab through its health coverage plan coverage plan

District Court and Court of Appeals for the Ninth Circuit: District Court and Court of Appeals for the Ninth Circuit: Ruled in favor of the workerRuled in favor of the worker

Supreme Court: Reversed in favor ChevronSupreme Court: Reversed in favor ChevronEmployer can deny a job to a person because of a direct threat to Employer can deny a job to a person because of a direct threat to

the health or safety of the health or safety of that individualthat individual, not only to others in the , not only to others in the work place and its customerswork place and its customers

HOWEVER:HOWEVER:(not in text, but important issue; concludes next slide)

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SO19: (NFE) Direct threat, cont.SO19: (NFE) Direct threat, cont.

In another case, the Supreme Court ruled that the direct threat clause did not apply to hiring a pregnant applicant who would be exposed to lead which, of course, would pose a health threat to her unborn child.

The court said that was “too paternalistic.”

That’s why the lower courts originally ruled in favor of the worker in the Chevron case - they thought this precedent/ruling also applied to the individual himself or herself as well.

(Click after paternalistic; so, you can expose your unborn child to serious health/safety risks but you cannot expose yourself to health/safety risks under ADA)

maternalistic????

SO20: Three other ADAAA issuesSO20: Three other ADAAA issues

(1) Short-term impairments(1) Short-term impairments

If a disability is episodic, in remission, or is a severe If a disability is episodic, in remission, or is a severe temporary impairment, it is covered, temporary impairment, it is covered,

Before 2011, neither EEOC nor the courts Before 2011, neither EEOC nor the courts considered temporary impairments, such as a considered temporary impairments, such as a broken leg, broken hip, torn tendons/ligaments, etc. broken leg, broken hip, torn tendons/ligaments, etc. to be disabilities under ADAAAto be disabilities under ADAAA

In three court cases, the Courts of Appeal for the In three court cases, the Courts of Appeal for the Fourth and Seventh Circuits ruled that severe Fourth and Seventh Circuits ruled that severe temporary disabilities were coveredtemporary disabilities were covered

There haven’t been many cases and none has There haven’t been many cases and none has reached the Supreme Court, so stay tuned…..reached the Supreme Court, so stay tuned…..

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SO20: Three other ADAAA issuesSO20: Three other ADAAA issues

(2) Reverse discrimination claims are (2) Reverse discrimination claims are ““not not cognizablecognizable”” (not possible) (not possible) Discrimination against nondisabled individuals is not a Discrimination against nondisabled individuals is not a

violation of ADAAAviolation of ADAAA This clause was included due to reverse discrimination This clause was included due to reverse discrimination

cases brought under Title VIIcases brought under Title VII

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(white males brought lawsuits when they were disadvantaged)

SO20: Three other ADAAA issuesSO20: Three other ADAAA issues

(3) Individuals covered only under the (3) Individuals covered only under the ““regarded regarded asas”” prong/clause are not entitled to reasonable prong/clause are not entitled to reasonable accommodationaccommodation NFE, but I need to back up a bit:NFE, but I need to back up a bit:

In order to be covered by ADA, the individual must be In order to be covered by ADA, the individual must be able to perform the essential features of the job able to perform the essential features of the job with or with or without reasonable accommodationwithout reasonable accommodation

ADAAA provision makes sense: individuals covered ADAAA provision makes sense: individuals covered under under ““regarded asregarded as”” prong aren’t really disabled prong aren’t really disabled

If a company thinks that a person’s obesity is covered because If a company thinks that a person’s obesity is covered because it interferes with a major life activity, but it doesn’t, the person is it interferes with a major life activity, but it doesn’t, the person is still covered under ADAAA, but not entitled to any still covered under ADAAA, but not entitled to any accommodationsaccommodations

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SOs 24 & 25: Medical testsSOs 24 & 25: Medical tests

(Sos 21-23 are straightforward; 24&25 are related - medical testing and examinations; VERY IMPORTANT!!!!)

ADA prohibits pre-employment inquiries about a ADA prohibits pre-employment inquiries about a personperson’’s disability and/or the nature and severity s disability and/or the nature and severity of the disability if the disability is obviousof the disability if the disability is obvious

SO24: Thus, any type of test that could reveal a SO24: Thus, any type of test that could reveal a disability, or the nature and severity of a disability disability, or the nature and severity of a disability is considered a is considered a ““medicalmedical”” examination and examination and cannot cannot be administered before an offer is made……be administered before an offer is made……

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SOs 24 & 25: Medical testsSOs 24 & 25: Medical tests

SO25: SO25: However, the offer may be made However, the offer may be made contingent upon passing a medical examinationcontingent upon passing a medical examination If everyone is required to take the examIf everyone is required to take the exam If the results are kept confidential and maintained in a If the results are kept confidential and maintained in a

file that is separate from the personfile that is separate from the person’’s s application/employment file*application/employment file*

*Assumes, of course, the test is job related or has business necessity as well

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SO26: Drug testingSO26: Drug testing

Drug testing is Drug testing is notnot considered a medical test considered a medical test under ADAunder ADA You can administer a drug test before an offer is You can administer a drug test before an offer is

mademade Why? Why?

Those using illegal drugs are excluded from Those using illegal drugs are excluded from coverage under ADA. Thus, while many would coverage under ADA. Thus, while many would consider drug testing a medical test, it is not consider drug testing a medical test, it is not considered a medical test considered a medical test under ADAunder ADA

(I dealt with this previously, but want you to learn this point now; so drug test away)

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SO26: NFE, medical marijuana and SO26: NFE, medical marijuana and drug testingdrug testing

23 states and the DC have passed medical 23 states and the DC have passed medical marijuana lawsmarijuana laws

If a person has a disability and uses medical If a person has a disability and uses medical marijuana, what about drug testing?marijuana, what about drug testing?

Many laws protect employers with clauses like Many laws protect employers with clauses like ““employers are not required to accommodate the employers are not required to accommodate the medical use of marijuana in any workplace.medical use of marijuana in any workplace.””

However, laws are varied and there have not yet However, laws are varied and there have not yet been many cases but cases favor the been many cases but cases favor the organization when they have been testedorganization when they have been tested

(had sufficient cases, however, all ruled the same; but I have been wrong before…case summary next)

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SO26: NFE, medical marijuana and SO26: NFE, medical marijuana and drug testingdrug testing

California Supreme Court, 2008California Supreme Court, 2008 OK to fire a worker after drug testOK to fire a worker after drug test Employers are under no obligation to accommodate Employers are under no obligation to accommodate

medical marijuana on or off the jobmedical marijuana on or off the job The law protects the individual from criminal The law protects the individual from criminal

prosecution but provides no protection on the jobprosecution but provides no protection on the job Why? Marijuana remains classified as an illegal Why? Marijuana remains classified as an illegal

substance under federal lawsubstance under federal law

(one of the first…Michigan case next)

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SO26: NFE, medical marijuana and SO26: NFE, medical marijuana and drug testing, Michigan casedrug testing, Michigan case

Sixth Circuit Court of Appeals, Sept. 2012Sixth Circuit Court of Appeals, Sept. 2012 OK to fire a worker after drug testOK to fire a worker after drug test

Wal-Mart in Battle Creek fired an employee who has an Wal-Mart in Battle Creek fired an employee who has an inoperable brain tumor after he failed a drug testinoperable brain tumor after he failed a drug test

Employee was using marijuana legally under state lawEmployee was using marijuana legally under state law

Upheld the district court ruling made in 2011Upheld the district court ruling made in 2011 Same rationale as in CASame rationale as in CA

Employers are under no obligation to accommodate medical marijuana on or Employers are under no obligation to accommodate medical marijuana on or off the joboff the job

The law protects the individual from criminal prosecution but provides no The law protects the individual from criminal prosecution but provides no protection on the jobprotection on the job

Why? Marijuana remains classified as an illegal substance under federal lawWhy? Marijuana remains classified as an illegal substance under federal law

(one of the first…Washington case next)

Washington State Supreme CourtWashington State Supreme Court

Ok not to hire a customer service consultant for Ok not to hire a customer service consultant for her legal, at-home use of marijuanaher legal, at-home use of marijuana Applicant disclosed her use during the hiring processApplicant disclosed her use during the hiring process Gave the company a copy of her physicianGave the company a copy of her physician’’s s

authorizationauthorization Was not hired after a pre-employment drug screen Was not hired after a pre-employment drug screen

when she tested positive for THC.when she tested positive for THC.

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(all decisions have been consistent and based on the same rationale)

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SO27: SO27: ““PsychologicalPsychological”” tests (mental tests (mental disorder and personality tests)disorder and personality tests)

Are psychological tests medical examinations Are psychological tests medical examinations under ADA?under ADA? Their use is very controversial under ADATheir use is very controversial under ADA Sometimes psychological tests are medical Sometimes psychological tests are medical

examinations; sometimes they are not - and, experts examinations; sometimes they are not - and, experts don’t all agree with respect to which ones are medical don’t all agree with respect to which ones are medical tests and which ones are nottests and which ones are not

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SO27, cont: Psychological testsSO27, cont: Psychological tests A: If the test is designed to identify mental disabilities, A: If the test is designed to identify mental disabilities,

then the test is considered a medical test (MMPI and then the test is considered a medical test (MMPI and somesome personality tests) personality tests) California Personality Inventory (popular in selection) deleted 28 items they California Personality Inventory (popular in selection) deleted 28 items they

felt might have posed problems (see article)felt might have posed problems (see article) Courts have not ruled whether such a test would be considered to be a test Courts have not ruled whether such a test would be considered to be a test

of pathologyof pathology

Why are tests of mental disability and pathology Why are tests of mental disability and pathology considered medical tests under ADA?considered medical tests under ADA?ADA protects individuals with mental disabilities and the employer is not ADA protects individuals with mental disabilities and the employer is not supposed to know whether or not the person is disabled or the extent of the supposed to know whether or not the person is disabled or the extent of the disability at the time of an offerdisability at the time of an offer

(used to be fairly common practice to administer MMPI to applicants for police and fire positions BEFORE interview -

can’t do that anymore;.)

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SO27, cont: SO27, cont: ““PsychologicalPsychological”” tests tests

B: What is the most cautious (best) approach to B: What is the most cautious (best) approach to the administration of psychological tests as the administration of psychological tests as selection tests?selection tests?Consider them all medical tests, and like other medical Consider them all medical tests, and like other medical tests,tests, administer them only post-offer, with the offer made administer them only post-offer, with the offer made contingent on the outcome of the examcontingent on the outcome of the exam. .

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SO28: When doesn’t an employer have to SO28: When doesn’t an employer have to provide a provide a ““reasonable accommodation?reasonable accommodation?””

When it causes When it causes undue hardshipundue hardship for the for the organizationorganization

Again, however, itAgain, however, it’’s pretty unclear what s pretty unclear what ““undue hardshipundue hardship”” constitutes. constitutes.

NFE: What factors influence NFE: What factors influence ““undue undue hardship?hardship?””

Nature and cost of the accommodation; size, Nature and cost of the accommodation; size, type, and nature of the facility and its parent type, and nature of the facility and its parent companycompany

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SO30 NFE: Reassignment as accommodationSO30 NFE: Reassignment as accommodation

ADA is an EEO law administered by the ADA is an EEO law administered by the EEOC and as such does not require AA EEOC and as such does not require AA

There are controversies about There are controversies about when/whether a qualified disabled when/whether a qualified disabled employee should be reassigned as a employee should be reassigned as a reasonable accommodation, and hired for reasonable accommodation, and hired for a vacant position or whether a more a vacant position or whether a more qualified applicant can be hiredqualified applicant can be hired

(What is a reasonable accomd is messy and complicated; only a few issues related to selection – briefly touch on those, but NFEvery recent controversy re preferences for a vacant job and selection)

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SO30 NFE: Reassignment as accommodationSO30 NFE: Reassignment as accommodation

Union contract and seniority rightsUnion contract and seniority rightsThe Supreme Court has ruled that if there is a The Supreme Court has ruled that if there is a vacant position and if a union contract exists thatvacant position and if a union contract exists that designates that seniority rights will be used to fill designates that seniority rights will be used to fill the position, the union contract takes the position, the union contract takes precedence over an individual who has a precedence over an individual who has a disability and has requested the job as a disability and has requested the job as a ““reasonable accommodationreasonable accommodation””

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SO30 NFE: Reassignment as accommodationSO30 NFE: Reassignment as accommodation

Can a more qualified person be hired for a Can a more qualified person be hired for a vacant position if a disabled individual has vacant position if a disabled individual has requested the position as an accommodation?requested the position as an accommodation?

We don’t knowWe don’t know Two Courts of Appeal have ruled that the more Two Courts of Appeal have ruled that the more

qualified person can be hiredqualified person can be hired Two Courts of Appeal have ruled that the disabled Two Courts of Appeal have ruled that the disabled

individual must be given the job, if qualified, even individual must be given the job, if qualified, even though less qualifiedthough less qualified

Nothing has reached the Supreme Court, stay Nothing has reached the Supreme Court, stay tuned… tuned…

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SO 31: Intro, Essential job functionsSO 31: Intro, Essential job functions

In order to be covered by ADAAA, the disabled In order to be covered by ADAAA, the disabled individual must be able to perform the essential individual must be able to perform the essential functions of the job with or without reasonable functions of the job with or without reasonable accommodationaccommodation

(so, how are essential features defined?, next slide)

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SO 31: Into, Essential job functionsSO 31: Into, Essential job functions

What is an essential job function? (NFE)What is an essential job function? (NFE) The primary reason the job exists - very important The primary reason the job exists - very important

implications for job analysisimplications for job analysis Are others in the position required to perform it?Are others in the position required to perform it? Would removing the function fundamentally alter the Would removing the function fundamentally alter the

position?position? Most important: Did a job description exist before Most important: Did a job description exist before

advertising and interview begins that contains that advertising and interview begins that contains that function?function?

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NFE: Strange case re essential functions of the job, NFE: Strange case re essential functions of the job, Cleveland v. Policy Management Systems, 1999Cleveland v. Policy Management Systems, 1999

Woman was receiving social security payments Woman was receiving social security payments for for total disabilitytotal disability on the grounds that she was on the grounds that she was completely unable to work because of her completely unable to work because of her disabilitydisability

She applied for a job at Policy Management She applied for a job at Policy Management SystemsSystems

Company denied hiring based on the fact that she Company denied hiring based on the fact that she was getting social security payments because she was getting social security payments because she could not work (and hence could not perform the could not work (and hence could not perform the essential functions of the job)essential functions of the job)

The issue: Would the court grant her a trial to The issue: Would the court grant her a trial to determine whether she was covered by ADA?determine whether she was covered by ADA?

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NFE: Strange case re essential NFE: Strange case re essential functions of the jobfunctions of the job

What did the court rule?

Yep, you guessed it - the court granted her a trialon the grounds that if she were not able to performthe essential features of the job, the company could (and had to) prove that.

(working is a major life activity and thus she was covered by ADA; the reason I am presenting these strange cases - burden placed on companies and while our sympathies may lie with the disabled generally, think of yourself as a selection specialist advising the company about what it should do)

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SO 31: Essential job functions, critical SO 31: Essential job functions, critical steps for a selection specialiststeps for a selection specialist

The job analysis should include a list of the The job analysis should include a list of the essential functionsessential functions Typical job analyses don’t do thisTypical job analyses don’t do this

Job descriptions that explicitly state the Job descriptions that explicitly state the essential functions need to be developed for essential functions need to be developed for every position and updated frequentlyevery position and updated frequently

New hires/employees should sign off on the job New hires/employees should sign off on the job descriptionsdescriptions

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SO32: Attendance; essential job function SO32: Attendance; essential job function and reasonable accommodationand reasonable accommodation

All employers consider regular, predictable attendance to All employers consider regular, predictable attendance to be an essential job function, thus most do not list it in a job be an essential job function, thus most do not list it in a job descriptiondescription Some cases under the Rehabilitation Act state that attendance is an Some cases under the Rehabilitation Act state that attendance is an

essential job even if not stated in the job descriptionessential job even if not stated in the job description But these cases involve absenteeism on a scale that would astonish But these cases involve absenteeism on a scale that would astonish

most employersmost employers EEOC has claimed that absences are a EEOC has claimed that absences are a ““reasonable reasonable

accommodationaccommodation”” EEOC maintains that absence from the job (due to a disability) is a EEOC maintains that absence from the job (due to a disability) is a

reasonable accommodation even if that absence extends six to reasonable accommodation even if that absence extends six to eight monthseight months

MostMost courts have made contradictory rulings, but no cases have courts have made contradictory rulings, but no cases have reached the Supreme Courtreached the Supreme Court

If regular attendance is required, it should be explicitly If regular attendance is required, it should be explicitly stated as an essential job functionstated as an essential job function

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SO32: NFE, Attendance, and reasonable SO32: NFE, Attendance, and reasonable accommodationaccommodation

Even though regular, predictable attendance may be an Even though regular, predictable attendance may be an essential job function, a particularessential job function, a particular numerical level numerical level of of attendance may not beattendance may not be Accommodation of appointments with a psychologist is considered Accommodation of appointments with a psychologist is considered

to be a reasonable accommodationto be a reasonable accommodation Hospitalization is considered to be a reasonable accommodationHospitalization is considered to be a reasonable accommodation Leave of absence is considered to be a reasonable accommodationLeave of absence is considered to be a reasonable accommodation Attendance policies should be applied in a discretionary way, using Attendance policies should be applied in a discretionary way, using

# and frequency of absences, and patterns (adjacent to weekends # and frequency of absences, and patterns (adjacent to weekends or holidaysor holidays

Take-home point for selection specialists:Take-home point for selection specialists:You should include coming to work and attendance as essential You should include coming to work and attendance as essential functions of the job in the job analysis and job descriptions and notify all functions of the job in the job analysis and job descriptions and notify all applicants of its requirements.applicants of its requirements. Back it up with data from the job analysis, otherwise, you may lose Back it up with data from the job analysis, otherwise, you may lose

that challenge, even if you list it as an that challenge, even if you list it as an ““essential job function.essential job function.””

SO32: Getting along with others as an SO32: Getting along with others as an essential job functionessential job function

If rude, insubordinate, or disruptive behavior can be If rude, insubordinate, or disruptive behavior can be attributed to a mental disorder or medications being attributed to a mental disorder or medications being taken for the mental disorder, as long as it does not taken for the mental disorder, as long as it does not involve violence or serious threats of violence (the direct involve violence or serious threats of violence (the direct threat clause of ADA), it is protected by ADA and must threat clause of ADA), it is protected by ADA and must be accommodated.be accommodated.

If getting along with others is required, it should be If getting along with others is required, it should be explicitly stated as an essential job functionexplicitly stated as an essential job function

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NFE: A case of essential functionsNFE: A case of essential functions at WMU, if time at WMU, if time

A professor who had a stroke claimed coverage A professor who had a stroke claimed coverage under ADA and asked for two teaching assistants under ADA and asked for two teaching assistants to teach many of his/her classes and to grade all to teach many of his/her classes and to grade all of the exams because he/she was unable to do so of the exams because he/she was unable to do so because of his/her disability.because of his/her disability.Is teaching an essential job of the professor and, Is teaching an essential job of the professor and, if so, was this a reasonable accommodation?if so, was this a reasonable accommodation?

(answer not on slide)

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NFE: Reasonable accommodation at NFE: Reasonable accommodation at WMU, Mr. GlennWMU, Mr. Glenn’’s system s system

Is the individual covered by ADA?Is the individual covered by ADA? Submit medical records that address the following:Submit medical records that address the following:

Diagnosis?Diagnosis? Prognosis - is it a long-term or temporary condition?Prognosis - is it a long-term or temporary condition? Any known mitigating factors?Any known mitigating factors? Recommended accommodations by physicianRecommended accommodations by physician

If the individual does not submit the above, do not move If the individual does not submit the above, do not move forward with accommodationforward with accommodation

If individual submits the above, a high level committee If individual submits the above, a high level committee considers:considers: Is the individual covered by ADA?Is the individual covered by ADA? Are the accommodations Are the accommodations ““reasonablereasonable”” as requested as requested If not, are there alternative accommodations?If not, are there alternative accommodations?

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End of Unit 3End of Unit 3

Questions/Comments???Questions/Comments???

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NFENFE

Must an employer compromise performance Must an employer compromise performance standards as a reasonable accommodation?standards as a reasonable accommodation?

NO

(NFE) This issue is not addressed in ADA, but precedents have been set by the Rehabilitation Act of 1973 that the employer does not have to compromise “legitimate” performance standards

However, you better clearly state those standards and include them as essential functions of the job

Well, experts don’t think so, anyway!!