PSY 6430 Unit 3

1. PSY 6430Unit 3 Legal Issues, cont. & The Americans with Disabilities Act Schedule: Wednesday & Monday: Lecture Exam: Wednesday, Feb. 15 Note: I will not be here on Feb. 15

2. SO1&2: The importance of the Uniform Guidelines on Employee Selection Procedures 1. These guidelines were “hammered” out and approved by all of the federal agencies involved in EEO and AA compliance (1978) • EEOC, Civil Service Commission, Dept. of Justice, and Dept. of Labor Prior to this, both EEOC and Dept. of Labor (OFCCP) had issued separate guidelines that conflicted. Selection specialists could not conform to both with respect to some procedures. Imagine the confusion. (start with the Uniform Guidelines, review some important court cases related to selection, and then move onto the ADA. Sos on text: learn full name; I was actually in this situation at PA - we were a semi-private, semi-public organization, subject to both EEOC and OFCCP guidelines, yet we couldn’t satisfy both. And, remember what the stakes are for violating the law….)

3. SO2: Uniform Guidelines on Employee Selection Procedures, cont. 2. While not legally binding, the courts give “great deference” to the guidelines. The courts have ruled that these guidelines will be used as a “checklist” for the appropriateness of selection procedures. (when we get to the professional development/requirements for selection procedures, particularly the job analysis, they are based on these Uniform Guidelines).

4. SO3: NFE, Selection instruments covered • The EEO & AA laws cover any selection procedure used, not just selection tests: • Application blanks • Academic degree requirements • Job interviews • Performance appraisals used for promotion decisions • Social media web sites of applicants! • Google searches and social media web site searches can get organizations into a great deal of trouble because those making selection decisions can become aware of protected characteristics of applicants – more on this in U8 (next few Sos, just some details from the guidelines that are particularly important)

5. SO4: Restrictions on use of skills and abilities in selection 1. If they can be learned during a relatively brief training period - within 6 months – cannot test for them • Makes perfect sense from a selection standpoint • Has implications for job analysis so we will be coming back to this, but your job analysis must identify not only which KSAs are required for effective job performance, but also which can be learned on the job (so they can be excluded from your selection procedures)

6. SO4: Restrictions on the use of skills and abilities in selection 2. KSAs from higher level jobs are only acceptable if • The majority of job incumbents actually assume higher level positions • If they so do within a reasonable period of time - Uniform Guidelines, within five years • If you are hiring assembly line workers, 40 incumbents, but only 2 supervisory positions, and only a few ever become supervisors - NO! • If it takes an assembly line worker more than 5 years to become a supervisor - NO! • If supervisory position requires a BA, but the assembly line worker position does not - you cannot require your assembly line workers to have BAs (Many companies want to test for higher level skills, particularly if there is a strong hire from within policy. However…political hot potato in orgs)

7. SO5: Three cut-off score procedures • Least restrictive: Minimum cut-off score • Minimum score above which you consider all applicants equally qualified • Pass/fail system • Type of validity procedure: Empirical or content • Next restrictive: Banding • Establish ranges of scores and group applicants in those ranges: Every applicant is equally qualified within each band • Type of validity procedure: Empirical only (type of cut-off score, major implications for the type of validity procedure you use and hence the type of job analysis; cover this now and again later)

8. SO5: Three cut-off score procedures, cont. • Most restrictive: Rank order applicants based on scores • Select top person first, then the next one, etc. • Type of validity procedure: Empirical only (managers have trouble with this one, by the way – even if the systems allows input/interview with respect to who is going to be working for them)

9. SO5: Three cut-off score procedures, cont. • Must use empirical validity to determine job relatedness of the selection procedure if • Banding • Rank ordering • (and of course, if there is adverse impact)* • Why? Two requirements: Uniform Guidelines state If you use these approaches not only do you have to (a) show that your selection procedures are job related, but also (b) that those who score higher on the exam/procedure will also perform better on the job There is only ONE way to do that - statistics, empirical validation *Remember, the laws are only relevant if adverse impact exists (often ignored by organizations)

10. SO6: NFE Paper trails • Documentation of everything you do in selection is critical • If someone makes a charge of unfair discrimination and you cannot document your job analysis procedures, your determination of what selection procedures to use, and your recruitment and selection procedures you will lose! • You have learned enough at this point to know that some of these cases take 10-15 years to resolve and you may have left the organization or joined the organization after the case began and hopefully the person before you left documentation… (I can’t think of a good so for this so NFE but…)

11. SO7: Griggs v. Duke Power, 1971 • Case started in 1967 • Thirteen black employees filed a law suit for the company’s operations units • Selection instruments included a high school diploma, mechanical aptitude test, and a general intelligence test • Screened out a much higher proportion of blacks than whites • Company hadn’t made any attempts to validate the selection procedures (Sos ask you to learn some findings from some of the major cases: the first major and most influential court case – started it all: Every selection specialist knows about this case; three major rulings, well before the uniform guidelines in 1978)

12. SO7: Griggs v. Duke Power, 1971 • It established adverse impact as a form of unfair discrimination • That is, lack of discriminatory intent was not a sufficient defense • Selection procedure must be job related if adverse impact occurs • Employer bears the burden of proof when adverse impact occurs • Established the shifting burden of proof for adverse impact cases which remains in tact today. (three major rulings from that case)

13. SO10: Ricci v. DeStefano, 2009 • New Haven Civil Service Board administered a promotional exam for lieutenant and captain fire fighter jobs • After the exams had been administered and scored, the Civil Service Board • Discarded the exams because their use would have resulted in adverse impact for black applicants and • Blacks threatened to file a law suit (extremely interesting case)

14. SO10: Ricci v. DeStefano Here are the actual numbers: No blacks were eligible for promotion to captain or lieutenant.

15. SO10: Ricci v. DeStefano • Whites and Hispanics subsequently filed a law suit • Claimed the decision to discard the exam violated Title VII because it was based on race and color

16. SO10: Ricci v. Destefano • 2006: District Court upheld the right of CSB to refuse to certify the results of the test on the grounds it would result in adverse impact • 2008: Second Circuit Court of Appeals upheld the District Court ruling, stating that the CSB was “in an unfortunate position of having no good alternatives.” • 2009: Supreme Court ruled 5-4 in favor of the white and Hispanic plaintiffs, not the CSB

17. SO10: Ricci v. Destefano • Main reason (and one for the exam) If there is adverse impact, the threat of a law suit is not sufficient reason to discard the exam • Court also stated If the test was job-related, then adverse impact would be OK (fair discrimination), and it appeared that the tests were professionally developed and job related (another slide on this)

18. SO10: Ricci v. Destefano • What happened next New Haven reinstated the examination results and promoted 14 of the 20 firefighters within months of the decision. The city settled the lawsuit by paying $2 million to the white and Hispanic firefighters who brought the lawsuit, enhancing their pension benefits by millions of dollars, and paying their attorney $3 million in fees and costs. (ouch)

19. ADA Introduction • ADA was passed in 1990, with the parts related to selection going into effect in 1992 • Profound effect on selection • Become one of the most controversial pieces of legislation ever passed • Supreme Court started hearing cases in 1999, and made some clarifying decisions • Many of those decisions have now been negated by the ADA Amendments Act of 2008 • Became effective Jan. 1, 2009 • Many law suits about the ADA Amendments are just now being resolved and making their way into the higher courts – so some of this is stayed tuned…. (moving onto ADA: no controversy over the goals of the Act, but in provisions/interpretations - very difficult for organizations to do the right thing; Don’t like the way the text handles this; ADA first as if the provisions still stand, then talk briefly about ADAAA, confusing: 4 major issues/problems)

20. Four Major Issues • Who is actually covered by the Act? • EEOC guidelines vs. Supreme Court decisions • Vague language about what “mental disabilities” means • Burden for companies because each and every case must be handled on an individual basis (list the four issues here, then look at each in more detail)

21. SO11A: First Controversy: Who is covered? An individual who: • Has a physical or mental impairment that substantially limits one or more major life activities, • Has a record of such impairment, or • Is regarded as having an impairment • If an organization assumes someone has AIDS who does not, that person is covered by ADA • Case won by a person who was misdiagnosed as learning disabled; she was regarded as learning disabled by the company and thus was covered (have to start with definition, which I ask you to learn as SO12)

22. SO11A, continued • Most of the lawsuits filed have been about who is covered by the act • Who is actually considered to have a physical or mental disability that substantially limits one or more major life activity • All of the italicized words have been issues of major court cases

23. SO11B: Second Controversy: EEOC guidelines vs. Supreme Court • When new EEO legislation is passed, the EEOC always issues guidelines for companies to follow • In the past, the courts have always given “great deference” to those guidelines, basically using them as a checklist when making decisions NOT SO WITH ADA • EEOC guidelines took a strong advocate stance for individuals -VERY liberal guidelines • The Supreme Court narrowed ADA’s application, ruling a manner that decreased the number of individuals who were covered (conservative) (we may see this happen again with criminal background checks and credit checks – very controversial right now with EEOC issuing guidelines that favor the applicant because of disparate impact; lower courts really curtailing)

24. SO11B, continued • First, this caused mass confusion - companies had no clue about what was acceptable and what was not (that is, who was covered and who was not) • Second, some district and circuit courts abided by the EEOC guidelines and some did not • Different laws in different parts of the countries • Lower courts that abided by EEOC, found decisions overturned • Eventually, this led to the ADA Amendments Act • Signed by President Bush (reluctantly) 9/28/08 • Took effect Jan. 1, 2009

25. SO11C: What does the ADA Amendments Act do? • For the most part, the act negates the Supreme Court decisions, which favored organizations, and broadens the coverage of ADA back to what its framers called the “original intent” of ADA • Most of the wording is consistent with the original EEOC guidelines for ADA • Note that what happened here is similar to what happened with Title VII and the Supreme Court’s rulings that led to the CRA of 1991

26. NFE: But how coverage changed and the impact of ADAAA on discrimination claims • When ADA was passed, it was expected that it would protect the then estimated 43 million Americans with physical and mental disabilities • After the Supreme Court decisions, coverage was narrowed to an estimated 13.5 million individuals • Since ADAAA, with the scope of coverage restored, claims of unfair discrimination under ADA increased by 42% (from 2009-2011) • And, in 2013, the American Medical Association classified obesity as a disease. The EEOC rescinded its previous exclusion of obesity, thus even more individuals are now covered

27. Third Major Controversy: Mental Disabilityas of 2013, Intellectual Disability • Framers included mental disabilities, however • There isn’t any clarifying language about what a mental disability is • Now, the highest number of cases filed are related to mental disabilities (SO11D) • 11E The framers intended that only disabilities as defined in the DSM (clinical bible) be considered. However EEOC stated that the DSM is relevant but not the only diagnoses that may be covered • Chronic lateness syndrome • Sexual impulse control disorder (Back to the four major controversies, Diagnostic and Statistical Manual of Mental Disorders)

28. SO11F: Fourth major issue, individual consideration • Each and every case must be handled on an individual basis. Why? • Even individuals who have the same disability are not affected the same way • Degree of disability differs • The extent to which the disability interferes with a major life activity differs • Extent and nature of accommodations that individuals require in the workplace differ (places considerable burden on the employer; plus the controversies I have just mentioned make it very difficult for companies to know when they are In compliance)

29. SO13: What percentage of workers are disabled and how many disabilities covered? • According to the definition • 25% of the labor force is covered by ADA • At least 900 different disabilities • Those numbers make is clear why this Act is so difficult for employers, given that each and every case must be handled on an individual basis

30. SO14: (NFE) Who is excluded? • Exclusions • Homosexuals and bisexuals • Transvestites • Transsexuals • Pedophiles • Exhibitionists • Voyeurs • Others with any type of sexual behavior disorders • Compulsive gamblers • Kleptomaniacs • Pyromaniacs • Those currently using illegal drugs, hence drug testing IS legal under ADA (if no longer using, covered) (medical marijuana, later) • Active alcoholics who cannot perform their job duties or who present a threat to the safety or property of others (otherwise covered; and if no longer drinking, covered) (conservatives required this; Some states, particularly CA have state laws where some of these groups are included in a state ADA act; disabilities)

31. SO15: What in addition to a disability must be present for a person to be “disabled” under ADA • Disability must substantially limit one or more major life activities

32. SO16 NFE: Major Life Activity • ADAAA • Expanded the definition to the activities identified by the EEOC that had been restricted by the Supreme Court under ADA • Caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, reading, breathing, sleeping, learning, working, sexual function, reproduction, sitting, standing, bending, lifting, reaching, thinking, concentrating, and interacting with others • Added bodily functions (virtually all of them) • Immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory Note that some of these may occur outside of the work place and thus the employer may have no clue about them - sleeping, cell growth, sexual functioning, reproduction. It is up to the employee to disclose a disability and request accommodation, if necessary.

33. SO17: Mitigation • A: What is mitigation under ADA? Correction or amelioration of a disability due to prosthetic devices or medication • Eyesight - corrected by glasses • Hearing - corrected by hearing aids • High blood pressure - corrected by medication • Depression - corrected by medication • B: Prior to ADAAA, what was (a) EEOC’s position and what was the Supreme Court’s position? • EEOC guidelines: Disability must be considered in its unmitigated state • Supreme Court: Disability must be considered in its mitigated state • If the disability is mitigated, then the person is not covered by ADA • Supreme Court was more conservative (This issue caused more than its fair share of trouble; two SC cases are described in the text)

34. SO17: Mitigation • C: Where does it stand today due to ADAAA? Mitigating measures other than ordinary eye glasses and contact lenses shall not be considered

35. SO19: Direct threat clause • A: If a person has a disability as defined by ADA, but the person poses a direct threat to the safety or health of others in the work place or for its customers, the employer can legitimately not hire that person • B: How did the Supreme Court expand that ruling? • The issue: Does the direct threat clause apply to the worker himself as well as to others? (not in the text but has become critical – many original rulings of the courts did not take this direct threat clause into consideration; case is next)

36. SO19: Direct threat clause case, this slide NFE • Chevron v. Echazabal Man with a liver problem applied to work at Chevron where he would be exposed to chemicals/solvents that could lead to further and more severe liver problems. Chevron did not hire • Interesting, if they hired, and he became seriously impaired, the company would have to pick up part of the tab through its health coverage plan • District Court and Court of Appeals for the Ninth Circuit: Ruled in favor of the worker • Supreme Court: Reversed in favor Chevron Employer can deny a job to a person because of a direct threat to the health or safety of that individual, not only to others in the work place and its customers HOWEVER: (not in text, but important issue; concludes next slide)

37. SO19: (NFE) Direct threat, cont. In another case, the Supreme Court ruled that the direct threat clause did not apply to hiring a pregnant applicant who would be exposed to lead which, of course, would pose a health threat to her unborn child. The court said that was “too paternalistic.” That’s why the lower courts originally ruled in favor of the worker in the Chevron case - they thought this precedent/ruling also applied to the individual himself or herself as well. maternalistic???? (Click after paternalistic; so, you can expose your unborn child to serious health/safety risks but you cannot expose yourself to health/safety risks under ADA)

38. SO20: Three other ADAAA issues • (1) Short-term impairments If a disability is episodic, in remission, or is a severe temporary impairment, it is covered, • Before 2011, neither EEOC nor the courts considered temporary impairments, such as a broken leg, broken hip, torn tendons/ligaments, etc. to be disabilities under ADAAA • In three court cases, the Courts of Appeal for the Fourth and Seventh Circuits ruled that severe temporary disabilities were covered • There haven’t been many cases and none has reached the Supreme Court, so stay tuned…..

39. SO20: Three other ADAAA issues • (2) Reverse discrimination claims are “not cognizable” (not possible) • Discrimination against nondisabled individuals is not a violation of ADAAA • This clause was included due to reverse discrimination cases brought under Title VII (white males brought lawsuits when they were disadvantaged)

40. SO20: Three other ADAAA issues • (3) Individuals covered only under the “regarded as” prong/clause are not entitled to reasonable accommodation • NFE, but I need to back up a bit: In order to be covered by ADA, the individual must be able to perform the essential features of the job with or without reasonable accommodation • ADAAA provision makes sense: individuals covered under “regarded as” prong aren’t really disabled • If a company thinks that a person’s obesity is covered because it interferes with a major life activity, but it doesn’t, the person is still covered under ADAAA, but not entitled to any accommodations

41. SOs 24 & 25: Medical tests ADA prohibits pre-employment inquiries about a person’s disability and/or the nature and severity of the disability if the disability is obvious • SO24: Thus, any type of test that could reveal a disability, or the nature and severity of a disability is considered a “medical” examination and cannot be administered before an offer is made…… (Sos 21-23 are straightforward; 24&25 are related - medical testing and examinations; VERY IMPORTANT!!!!)

42. SOs 24 & 25: Medical tests • SO25: However, the offer may be made contingent upon passing a medical examination • If everyone is required to take the exam • If the results are kept confidential and maintained in a file that is separate from the person’s application/employment file* *Assumes, of course, the test is job related or has business necessity as well

43. SO26: Drug testing • Drug testing is not considered a medical test under ADA • You can administer a drug test before an offer is made • Why? Those using illegal drugs are excluded from coverage under ADA. Thus, while many would consider drug testing a medical test, it is not considered a medical test under ADA (I dealt with this previously, but want you to learn this point now; so drug test away)

44. SO26: NFE, medical marijuana and drug testing • 28 states and the DC have passed medical marijuana laws • If a person has a disability and uses medical marijuana, what about drug testing? • Many laws protect employers with clauses like “employers are not required to accommodate the medical use of marijuana in any workplace.” (SO says 23, but that was before 11/16; sufficient cases, however, all ruled the same; but I have been wrong before…case summary next)

45. SO26: NFE, medical marijuana and drug testing • However, laws are varied and there have not yet been many cases but every case has favored organization when they have been tested • Only three states, Arizona, Delaware, and Minnesota have explicit protection for employees who have medical authorization, but under these laws employees cannot be “impaired” • No cases have been decided in these states (SO says 23, but that was before 11/16; sufficient cases, however, all ruled the same; but I have been wrong before…case summary next)

46. SO26: NFE, medical marijuana and drug testing • California Supreme Court, 2008 • OK to fire a worker after drug test • Employers are under no obligation to accommodate medical marijuana on or off the job • The law protects the individual from criminal prosecution but provides no protection on the job • Why? Marijuana remains classified as an illegal substance under federal law (one of the first…Michigan case next)

47. SO26: NFE, medical marijuana and drug testing, Michigan case • Sixth Circuit Court of Appeals, Sept. 2012 • OK to fire a worker after drug test • Wal-Mart in Battle Creek fired an employee who has an inoperable brain tumor after he failed a drug test • Employee was using marijuana legally under state law • Upheld the district court ruling made in 2011 • Same rationale as in CA • Employers are under no obligation to accommodate medical marijuana on or off the job • The law protects the individual from criminal prosecution but provides no protection on the job • Why? Marijuana remains classified as an illegal substance under federal law (one of the first…Washington case next)

48. Washington State Supreme Court • Ok not to hire a customer service consultant for her legal, at-home use of marijuana • Applicant disclosed her use during the hiring process • Gave the company a copy of her physician’s authorization • Was not hired after a pre-employment drug screen when she tested positive for THC.

49. Colorado State Supreme Court • Employers can fire individuals for off-duty marijuana use, even if it is medically prescribed • Individual was a paraplegic as a result of a serious automobile accident • Received a registration card and began receiving medical marijuana to treat serious chronic pain • Fired after a random drug test • Same rationale: marijuana remains illegal under federal law (2015; all decisions have been consistent and based on the same rationale; I have no clue where this is going)

50. SO27: “Psychological” tests (mental disorder and personality tests) • Are psychological tests medical examinations under ADA? • Their use is very controversial under ADA • Sometimes psychological tests are medical examinations; sometimes they are not - and, experts don’t all agree with respect to which ones are medical tests and which ones are not