Before 1990, employment testing in the U.S. was like the Wild West. There were no federal rules and guidelines as to what an employer could require of a new hire applicant applying for a job. Employment testing programs and medical screening were ineffective at best when trying to determine if a new hire could safely perform the physical demands of a job.
The Technical Assistance Manual On The Employment Provisions (Title 1) of the Americans with Disabilities Act (ADA), which became law effective July 26, 1992, changed the landscape of employment testing. This law, which originally applied to employers with 25 or more employees, prohibits employment discrimination against qualified individuals with a disability. The law was amended in 1994 to include employers with 15 or more employees.
Title 1 of the ADA Technical Assistance Manual explains key legal requirements including:
- Who is protected by and who must comply with the ADA
- What the law permits and prohibits with respect to establishing employment testing qualification standards, assessing the qualifications and capabilities of people with disabilities to perform specific jobs, and requiring medical examinations
- Guidelines around reasonable accommodation
- How the law applies during other aspects of employment, including promotions and job transfers
Title 1 clearly states the ADA does not prohibit an employer from establishing job-related qualification standards, including physical abilities needed to perform the job. However, an employer cannot use qualification standards to screen out an individual with a disability or any class of individuals with a disability, unless the criteria used is job-related and consistent with business necessity. Even with job-related criterion in place, an employer must consider if reasonable accommodations may exist that would allow for an individual with a qualified disability to successfully perform the job. Essentially, the criterion used must accurately predict an individual’s ability to perform the essential functions of the position they are seeking.
Further, Title 1 of the ADA provides for strict guidelines as to when an employer may make disability-related inquiries or require medical examinations of applicants and employees. The guidelines state an employer may not ask applicants disability-related questions or require medical examinations before a formal job offer is made. Once a formal offer of employment is made, employers are required to treat all new hires applying in the same job category the same (i.e., all applicants applying for the same job position can be asked to submit to a formal medical and/or functional evaluation using consistent job-related criteria specific to that position).
So is employment testing legal? You bet! But within federal guidelines as established in the ADA Technical Assistance Manual.
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