Disparate Impact and the ADA
In class we didn't really discuss disparate impact on employees with disabilities. We spent a lot of time on the subject when we were talking about Title VII and I think it's an interesting topic, because it's something that a lot of employers don't see as being discriminatory. The Americans with Disabilities Act prevents employers from using selection techniques or other qualifications that screen out individuals with disabilities. For example, late last year, UPS was found to be in violation of the ADA by refusing to hire drivers who could not pass a hearing test. This is another example where the test being used did not test attributes that are needed to perform the central tasks of the job. What do you guys think about this case?
This has also made me think, what about the use of personality tests and other forms of mental ability tests? Do these create a disparate impact for people with psychological disorders? Can you think of any other screening processes that would violate the ADA?
This has also made me think, what about the use of personality tests and other forms of mental ability tests? Do these create a disparate impact for people with psychological disorders? Can you think of any other screening processes that would violate the ADA?
posted by Sara at
6:30 PM
5 Comments:
Sara, the UPS case you posted is very interesting. After reading your explaination of the case, I immediately thought that UPS could have successfully argued that their use of the hearing test simply provided safe business practices and was necessary. However, after reading the full article, it makes perfect sense that hearing drivers are not always safer than non-hearing drivers. Using overall driving records is a logical decision by the court and is an effective way to make certain that decisions are non-dicriminatory.
Also, businesses need to be very careful in the decisions they make to screen people!!!
Note, too, that the ADA's "screen out" provision doesn't require statistical proof to show a shortfall. It is enough for a disabled employee to show that the screening device screened him or her out.
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If I remember correctly from my book reflection, personality tests are allowed to be given before an offer of employment. Psychiatric tests, however, are not. Hollow Promises argues that even personality tests weed out qualified mentally disabled persons and are thus discriminatory.
The book also explains how courts' narrow construction of the "disability" definition of the ADA have left many mentally impaired persons out of luck, as they fail to meet the definition. This leads to employees hiding their impairments from their employers to avoid an adverse employement action.
Specifically, several mentally impaired employees have argued that their impairment substantially limits them in the major life activity of "getting along with others." Contrary to EEOC guidelines, the courts don't see this as a major life activity (MLA). This puts these employees in a bind because employees who are substantially limited in "getting along with others" aren't "disabled," but even if it was an MLA, "getting along with others" is essential to employment, so the employee is not qualified to work.
In addition to this difficulty, the courts often compare mental disabilities to physical disabilities, in that once you have the impairment it remains with you the rest of your life. This is often not the case. For many mental disabilities claims, the impairment doesn't become substantially limiting in a MLA until the employee gets a new supervisor.
I think that often times, personality tests do discriminate against individuals with psychological disorders. These individuals may not perceive a question the correct way or may answer a question that is contrary to what the employer was looking for. With regards to the hearing test, many people with hearing disabilities can perform the same task as people with perfect hearing across a diverse range of professions. I do not think that the UPS job should be considered as having hearing as a business necessity. As Eric pointed out in his comment, the driving records show that there is not a significant difference with hearing impaired and good hearing drivers.
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