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Use business necessity as rationale for pre-Employment exams

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in Discrimination and Harassment,Employment Background Check,Hiring,Human Resources

Does your hiring process build in safeguards to prevent inadvertent disability discrimination? If you’re unsure, follow these guidelines for setting up the right process.

First, accept applications without regard to disability—even obvious disabilities that you are relatively sure will disqualify the applicant. Next, screen those applications for meeting the basic job requirements, such as education level, training and experience. Then—and only then—administer any tests, making sure that you test only for job-related criteria that reflect business necessities.

Only after you’ve made a conditional job offer can you require a candidate to have a physical exam. Again, the exam must be job related and designed to find out whether the candidate is physically capable of performing the work the position requires. You cannot simply demand that applicants be “fit” or free of various medical conditions. If the applicant does not pass the physical, you can withdraw the offer.

Recent case: Steve Aleman applied for a challenging physical job with Lyondell-Citgo Refining. One of over 900 applicants, he ended up in a smaller pool of 30 applicants who got through the first stage of the process by passing an aptitude test and performing well during an interview.

Aleman then had to take a physical challenge test that required him to climb a 120-foot ladder and stairway. He also had to run up and down an 80-foot tower in less than five minutes. Aleman passed the test and received a conditional job offer—he would get the job if he passed a physical.

That’s when the trouble began. Aleman revealed to the doctor who initially examined him that he had been hit on the head when he was a teen. As a result, he had undergone brain surgery.

The treatment left him with a slight limp and weakness on one side of his body, so that he had to remind himself to pick up his foot rather than drag it along the ground. He also reported difficulty in grabbing handrails.

The medical examiners didn’t pass him, concluding that he might be a danger to himself or others since the job required extensive climbing. Despite the fact that he had passed the earlier tests, the refinery withdrew the earlier offer to Aleman.

He complained to the EEOC, which sued on his behalf. But the court threw out the case. It reasoned that Aleman wasn’t disabled because his condition didn’t substantially impair a major life function.

It also said there was nothing wrong with the selection process. The process did not screen out qualified disabled applicants, but gave everyone a shot at the jobs. (EEOC v. Lyondell-Citgo Refining, No. H-06-2738, SD TX, 2008)

Final note: If you outsource employment screening and testing, make sure the companies you use are reputable and use proven testing methods. They should be willing to back up any tests as valid and based on bona fide business necessities.

Be especially careful with personality testing, as the EEOC is currently focusing on making sure such tests don’t screen out applicants with mental disorders who are otherwise capable of performing well at work.

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