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No private ‘do-over’ if applicant flunks test

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in Discrimination and Harassment,Human Resources

Do you use standardized tests to determine if applicants meet the minimum requirements for a job? If so, remember this: An applicant who fails a fairly administered test (after receiving a conditional offer of employment) can’t go out and take the test privately and then demand reconsideration.

Recent case: Cory James was offered a job as a firefighter with the city of Los Angeles, contingent on passing a medical examination. The testing included an assessment to make sure he wasn’t colorblind. The Los Angeles Fire Department says being able to differentiate colors is a bona fide occupational qualification for firefighters and has research data to back up that conclusion.

James failed a series of three standardized color tests administered by the city, which then withdrew the offer.

James then went to his own doctor, who administered the same test. This time, he passed the test, exhibiting only a mild inability to distinguish between colors. He asked the LAFD to reconsider its decision.

When the job offer wasn’t reinstated, he sued, alleging disability discrimination.

The court dismissed his case, noting that there was no question that the ability to distinguish colors was a bona fide occupational qualification, and that the city had used a standard and valid test. The fact that he could pass the same test in a different setting was irrelevant.

Otherwise, reasoned the court, everyone who couldn’t pass a post-offer, pre-employment test could simply repeat the test in a different setting and then demand consideration for the job. (James v. City of Los Angeles, No. B222168, Court of Appeal of California, 2010)

Final note: Imagine the chaos and uncertainty that would result if employees could go elsewhere for testing. Employers would lose control over the entire process.

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