Disability Accommodations In the Testing Process

1. Disability Accommodations In the Testing Process

2. Introduction Dwight Dickerson, CPDM • Co-Owner of Chavez Dickerson Consulting Services • Disability Management Consultant • 30 years of experience in Workers Compensation • 15 years of experience in ADA & FEHA arena • Certified Professional Disability Manager • Clients include: • City of Torrance • City of Compton • City of Huntington Beach • Boeing • State Compensation Insurance Fund

3. Session Objectives • Define Reasonable Accommodations (RA) • Identify Reasonable Accommodations in a Testing Environment • Employers Role / Obligation in identifying a Reasonable Accommodations • Determine your Role in the Interactive Process • Identify Ways to Limit your Liability as an Employer

4. What is a Reasonable Accommodation? • A “Reasonable Accommodation” is any modification or adjustment in the pre-employment / testing process that will enable a qualified applicant with a disability to participate in the application process. • Both ADA & FEHA requires employers to make reasonable accommodations for applicants / employees with a disability. “Reasonable Accommodations” protects individuals with disabilities from being excluded or discriminated against in the pre-employment process. • The ADA & FEHA requires that tests be given to individuals in a manner that does not require the use of their impaired skill UNLESS, the test is designed to measure that particular skill.

5. How is a RA “Triggered” • An employer should tell applicants what the hiring process involves (e.g., an interview, timed written test, or job demonstration), and may ask applicants whether they will need a reasonable accommodation for this process. • During the hiring process and before a conditional offer is made, an employer generally may NOT ask an applicant whether s/he needs a reasonable accommodation for the job, EXCEPT when the employer knows that an applicant has a disability -- either because it is obvious or the applicant has voluntarily disclosed the information • If the applicant replies that s/he needs a reasonable accommodation, the employer may inquire as to what type. • After a conditional offer of employment is extended, an employer may inquire whether applicants will need reasonable accommodations related to anything connected with the job (i.e., job performance or access to benefits/privileges of the job) as long as all entering employees in the same job category are asked the same question.

6. Types of Reasonable Accommodations • Alternative Format • Extended Time • Reader (someone who can read test for applicant) • Scribe (someone who writes or records test for applicant) • Interpreter • Sign Language • Private Room

7. Reasonable Accommodation Examples • An applicant with dyslexia should be given an opportunity to take a test orally UNLESS reading is the skill being tested for the job. • Providing extra time to complete a test may be a “Reasonable Accommodation” as long as SPEED is not the skill being tested. __________ • An applicant with a visual impairment who can usually read printed material finds that they cannot read the test because of an unusually low color contrast between the ink and the paper. • The employer could provide the test in a higher contrast format, reschedule the test, or make any other effective accommodation that would not impose an undue hardship.

8. Employer’s Role / Obligation I. Know the Legal and Regulatory Requirements (ADA & FEHA) • It is discriminatory to use selection criteria that screen out individuals with disabilities UNLESS the criteria are shown to be JOB RELATED for the position and is consistent with business necessity. • Ensure that all tests DO NOT act as barriers to the employment of persons with disabilities unless the person is unable to do the job even with reasonable accommodation. • Employers should design selection criteria for jobs to ensure a close fit between the selection criteria and an individual’s ability to the job. • Tests should not be given in formats that require use of the applicants impaired skill, unless it is a job related skill that the test is intended to measure. • An employer is obligated to make reasonable accommodations only to the physical or mental limitations that results from the disability of an applicant with a disability, that are known to the employer. • Similarly, an employer is generally required to provided testing accommodations only if it knows in advance that an applicant has a disability that requires such accommodation • ADA and the Title I regulations prohibit pre-employment inquiry into a person's disability or the nature of the disability, with one narrow exception. The ADA permits employers to ask individuals with a hidden disability who request accommodations at the application stage to provide reasonable documentation to verify the disability and the need for accommodation.

9. Employer’s Role / Obligation (con’t) II. Include Essential Functions in the Job Advertisements • The EEOC advises employers to include information about the essential functions of the job in job announcements, advertisements, and other recruitment notices ; this will attract applicants, including individuals with disabilities, who have appropriate qualifications. • The EEOC also advises employers to consider including a statement in job advertisements and notices that they do not discriminate on the basis of disability or other legally prohibited bases. • The EEOC provides the following example: "We are an Equal Opportunity Employer. We do not discriminate on the basis of race, religion, color, sex, age, national origin or disability."

10. Employer’s Role / Obligation (con’t) III. Understand and Clearly Outline Business Necessities / Essential Job Functions • According to the Americans with Disability Act (ADA), an employer can only require an employee to undergo a employment testing when the test is "job related and consistent with business necessity." The pre-employment testing must be both of these, not just one or the other. It is important to note that "job-related" and "business necessity" are two distinct requirements. • In order for a Pre-employment test to be job related under the ADA, it must actually measure a person's ability to perform the job. For example, if the selection process is used to screen out individuals who have a disability, that test can only be used if it measures the person's ability to perform the job. So, an employer is not allowed to require a person to submit to a test unless that test has some bearing on their ability to perform the job. • The job related requirement applies to any function or condition of the job. As long as the pre-employment testing has something to do with your ability to perform some function of the job, it satisfies the job related requirement. But, if a person has a disability that prevents them from performing trivial or marginal job functions, the ADA requires an employer to look at whether a person can perform the essential functions of a job.

11. Employer’s Role / Obligation (con’t) III. Understand and Clearly Outline Business Necessities / Essential Job Functions (con’t) • Under the ADA, not only must a pre-employment testing be job related, it must also be consistent with business necessity. This means that the pre-employment testing must relate to the essential functions of the job. So, the pre-employment testing must test your ability to perform the core of the job. For example, if you are a cashier at a grocery store, the essential functions of your job would be to ring people up and help them bag their items. Any pre-employment testing your employer required would have to be related to how you perform those functions in order to be consistent with business necessity. • You will need to determine the  essential job functions  and  marginal functions  (non-essential functions) of the job position.  The essential job functions will need to be included in the job description.  This information will be important for determining if an applicant can perform the essential duties of the position with or without reasonable accommodation. • When describing the essential function requirements of the position, you should also identify and describe the physical and mental performing elements that are a necessary and integral part of the position.  Try to be as specific as possible.

12. Interactive Process • ADA & FEHA mandates that all employers must engage in an interactive process to determine if a reasonable accommodation of the applicant’s disability can be made. • The Interactive Process refers to the collaborative effort involving an employer and applicant to determine if the applicant does in fact require a reasonable accomadation in the pre-employment process. • This process typically involves a face-to-face meeting with the applicant and the human resources representatiove / hiring manager to discuss the request for reasonable accomadation. • The parties bring various ideas & suggestions to the table regarding whether the applicant can be accommodated by making the necessary changes or adjustments in the testing phase. • The parties may agree that a certain aspect of the testing can be modified or changed to meet applicants disability.

13. Interactive Process (con’t) Documentation • Document applicant’s request for reasonable accomadation. • Document any communciation initiated by Employer. • Document the mutual agreement of reasonable accomadation inclduing all specifics (i.e extended time, private room, etc.). • Provide copies to applicat as well as keep in HR file.

14. How to Limit Your Liability in Testing Process • Be open to the idea of providing a Reasonable Accommodation for all Qualified Individuals with a Disability • Utilize the ADA and FEHA guidelines to aid you in understanding your obligation in the testing process. • Engage in a timely and good faith Interactive Process • Document all communication with applicant regarding request or need for reasonable accommodation. • Utilize external consultants to provide objective opinions and or professional advice. • Do NOT allow your personal feelings or opinions to influence your business practices and decisions

15. Summary and Questions • Define Reasonable Accommodations (RA) • Outline How to Identify Reasonable Accommodations in a Testing Environment • Review Employers Role / Obligation in identifying a Reasonable Accommodations • Determine Human Resources Role in the Interactive Process • Identify Ways to Limit your Liability as an Employer

16. Contact Information Dwight Dickerson, CPDMChavez Dickerson Consulting 879 W. 190th Suite 400 Gardena, CA 90248 310/516-7420 office 310/516-1659 fax dwight@chavezdickerson.com