Don’t assume whether or not workers can pass job tests

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in Discrimination and Harassment,Employment Background Check,Human Resources

Jade McKenzie never had a negative job review in 10 years with the county sheriff's department. Then came a psychological meltdown prompted, in part, by post-traumatic stress related to childhood sexual abuse by her father.

McKenzie missed work frequently. She cut her wrists and was hospitalized for drug overdoses. She even fired six rounds from her revolver into her father's grave. She voluntarily resigned and sought psychological care.

A doctor later cleared her to return to work, but the sheriff wasn't about to put her back on the payroll. He was worried about liability and public uneasiness about her past illness.

Wyoming law provides for a standard psychological evaluation for officers, but the sheriff didn't bother sending McKenzie for the test. Instead, he asked the state law enforcement commission to revoke her certification. He assumed she wouldn't pass a background check.

She sued for disability discrimination, and a federal appeals court let the case go to trial. Reason: There was enough evidence to show that the sheriff perceived McKenzie to be disabled for an entire class of jobs or refused to rehire her because of her past record of disability. (McKenzie v. Dovala, No. 99-8084, 10th Cir., 2001)

The sheriff messed up because he made the assumption, before McKenzie took any tests, that she was disabled and couldn't do any jobs at the department. Even if she wasn't qualified to be a gun-toting deputy, she might have qualified for a desk job.

Also, the Americans with Disabilities Act (ADA) protects McKenzie from discrimination based on conduct related to her illness, as long as she isn't a direct threat to others. And that requires an individual assessment.

Advice: You shouldn't make snap judgments that an applicant or employee can't handle a certain job because of a disability. Let that person walk through the normal application channels, and then decide if she's qualified.

That McKenzie may pose a direct threat in certain public service positions would not be a defense for the sheriff, because that assessment must be based on valid medical analyses and/or other objective evidence, rather than on assumptions. This is the exact type of conduct the ADA was meant to protect against.

While you can't fault the sheriff for having concerns about putting McKenzie back on the streets, the ADA required him to take a broader look at her employment possibilities.

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