Richard D. Alaniz

Striking the balance between the need to hire qualified employees and the need to avoid disability discrimination claims has become even more challenging since changes to the Americans with Disabilities Act (ADA) went into effect in 2009. 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).

With the ADAAA, Congress specifically sought to allow more job applicants and employees to claim protection under the ADA. The definition of a disability remains the same: “an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.” However, the interpretation of what qualifies as a disability under this definition has changed. According to the Equal Employment Opportunity Commission (EEOC), which oversees ADA enforcement, “The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”

The ADAAA also kept the same definition of “qualification standards.” According to the EEOC, qualification standards and job-related requirements may permissibly include the following:

• Possessing specific training.

• Possessing specific licenses or certificates.

• Possessing certain physical or mental abilities (e.g., meeting vision, hearing, or lifting requirements; showing an ability to run or climb; exercising good judgment).

• Meeting health or safety requirements.

• Demonstrating certain attributes such as the ability to work with other people or to work under pressure.

Under the ADAAA, employers cannot use qualification standards or tests that tend 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 a negative action against an individual who cannot meet the standards, such as declining to hire an individual, or removing an employee from that position, 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.

The EEOC will not hesitate to bring claims against employers who allegedly violate these rules. In one recent case, the EEOC filed charges against Indianapolis trucking company Celadon. According to the EEOC, Celadon had been requiring job applicants for driving positions to take medical examinations before making conditional offers of employment. The EEOC charged that Celadon conducted examinations in a manner that was inconsistent with federal regulations and used the results to reject qualified applicants that the company thought were disabled.

The EEOC is seeking compensatory and punitive damages against Celadon, as well as a permanent injunction to prevent the company from engaging in any further employment practices that violate the ADA.

An Increasing Number of Discrimination Claims

When the ADAAA was first passed, many employers and their attorneys worried about an increase in discrimination lawsuits, and those fears were well founded. In Fiscal Year 2011, the EEOC filed 25,742 complaints of ADA violations, compared to 19,453 in Fiscal Year 2008.

Last March, as part of its release of the ADAAA Final Regulations, the EEOC stated: “In particular, we anticipate that more individuals with disabilities might file charges with the Commission. Moreover, we anticipate that plaintiffs’ lawyers, who previously might not have filed an ADA lawsuit because they believed that an employee would not be covered under the Supreme Court’s cramped reading of the term ‘disability,’ will now be more inclined to file lawsuits in cases where the lawyers believe that discrimination on the basis of disability — broadly defined — has occurred. As a result, we believe that there may be additional legal fees and litigation costs associated with bringing and defending these claims, but we have no basis on which to estimate what those costs might be.”

In order to avoid EEOC charges and employee lawsuits over the use of qualification standards, employers need to understand how federal regulators and courts are interpreting the use of qualification standards and what must be done to provide reasonable accommodations to those who are claiming a disability.

Guidance From the EEOC and the Courts

In several cases, the EEOC has looked specifically at qualification standards.

• In particular, the EEOC’s final regulations considered how “uncorrected vision” tests fit with qualification standards. According to the new regulations, those who do not pass vision tests without correction may not be disabled, but would still be adversely affected by requiring “uncorrected vision” tests. 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 a 2011 discussion letter, the EEOC warned that even requiring a high school diploma could violate the ADA because learning disabilities could prevent a job applicant from obtaining a high school diploma.

“Thus, if an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity,” the letter noted. “The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.”

• In Iverson v. City of Shawnee, Kansas, the 10th Circuit Court ruled against a plaintiff who claimed her employer did not make a reasonable accommodation for her when she could no longer physically do her job.

In that case, a police officer had to undergo back surgery after being hurt on the job. She could not pass the re-qualification test and requested an accommodation in the form of a transfer within the city as a detective or non-police officer. When told there were no jobs available, she sued, claiming that she “could have performed numerous positions within the [city] with or without reasonable accommodation.” However, she didn’t point to any specific jobs that she believed she was qualified for, and the court ruled in favor of the city.

What to Do Now

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, but they need to be sure that employees who cannot meet those standards would in fact be unable to do a particular job. 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, they should continue using standards. However, it’s best to consult with legal counsel and human resources professionals when determining the necessity and appropriateness of tests and standards.

Before requiring job applicants to undergo qualification standards, there needs to be a conditional job offer on the table. When employers do 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, not just those who appear as though they may fall short of the standard.

• 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 human resources 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.

Publication date: 04/23/2012