PSY 6430 Unit 3

1. PSY 6430Unit 3 Legal Issues, cont. & The Americans with Disabilities Act Schedule: Monday & Wednesday: Lecture Exam: Monday, Feb. 11

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 WRCs 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: 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)

11. SO6: 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)

12. SO7: Georgia Power, 1973 • This came on the heels of Duke Power • Selection procedure must be job related if adverse impact occurs • The Attorney General filed a lawsuit because at the time only 543 of the company’s 7,515 workers were black, despite a large pool of black applicants • Recognizing the requirement to show that the test battery they were using was job related, they conducted a validation study • The statistical evidence supported the relationship between the selection test scores and job performance ratings, demonstrating that the tests were job related (So far so good, right?)

13. SO7: Georgia Power, 1973 • The court ruled, however, that the validation study did not meet the minimum standards of the EEOC guidelines • One of the main failures was the fact that Georgia Power used an all-white sample in the validation study • Given that the applicant pool was one-third black the court held that the company should have at least attempted a type of validation study that included blacks (predictive validity study versus concurrent validity study – more on this later) • Also, there were blacks in some of the jobs and separate validation studies could have been done for those jobs or at least blacks could have been included in the sample to determine whether the validation data held for both blacks and whites • Rule that was violated was the requirement that the sample of subjects in the validation study be representative of the normal applicant pool

14. SO8: Content Validity vs. Empirical Validity • The distinction between content validity and empiricalvalidity is extremely important and I will be coming back to this later • Content validity is when you determine the job relatedness of a selection procedure using (only) the judgments of experts • Because of the difficulty of doing this correctly, the procedures for determining content validity are ”written in stone” by the UG and must be followed exactly • Empirical validity is when you use statistics to determine the job relatedness of a selection procedure • You have a lot more leeway with respect to your procedures because the “proof of the pudding is in the eating” – the stats (For now, OK just to know the basic distinction; your job analysis must be a task analysis and you must include a number of designated rating scales – I am going to have you do the first step in a task analysis as your proejct)

15. SO9: 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, that had the entire I/O community buzzing; really major case in the eyes of the selection profession)

16. SO9: Ricci v. DeStefano Here are the actual numbers: No blacks were eligible for promotion to captain or lieutenant.

17. SO9: 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

18. SO9: 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 (civil service board)

19. SO9: 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)

20. SO9: 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, move onto ADA)

21. 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)

22. 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)

23. SO13: ADA’s Definition of Disabled 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 SO13; note ”record of impairment; It doesn’t mean having a disability documented – means that the person has a history of impairment)

24. SO12A: First Controversy: Who is covered? • 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 (OK, now back to SO12)

25. SO12B: 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)

26. SO12B, 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

27. SO12C: 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

28. 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

29. Third Major Controversy: Mental Disability(as 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) • 12E 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)

30. SO12F: 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; last slide on this)

31. SO14: 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

32. SO15: (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 – they have a “record”) (conservatives required this; Some states, particularly CA have state laws where some of these groups are included in a state ADA act; disabilities)

33. SO16 NFE: Intro to “major life activities” • In order to be covered by ADA, not only must the person have a disability, but the disability must substantially limit one or more major life activities • Many early ADA cases centered around what a major life activity was, and thus whether an individual was actually covered under ADA • Right now, at the current time, given how ADAA has defined it, it is difficult to think of an impairment that doesn’t limit at least one major life activity, but the possibility still exists (Next slide, major life activities)

34. 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.

35. Essential job functions before accommodation • I am going to take the study objectives out of order here and talk first about what “essential functions” are before talking about reasonable accommodations • The two issues are very interrelated and I find it is more logical to talk about essential functions before talking about accommodation

36. NFE: What is an essential job function? • The primary reason the job exists - very important implications for job analysis • Removing the function would fundamentally alter the position • Others in the position are required to perform it • There are only a limited number of individuals who can perform the activity • Extremely important: A job description exists before advertising and interviewing that contains the function

37. NFE: Strange case re essential functions of the job, Cleveland v. Policy Management Systems, 1999 • Woman was receiving social security payments for total disability on the grounds that she was completely unable to work because of her disability • She applied for a job at Policy Management Systems • Company denied hiring based on the fact that she was getting social security payments because she could not work (and hence could not perform the essential functions of the job) • The issue: Would the court grant her a trial to determine whether she was covered by ADA? (can’t resist telling you about a strange case)

38. NFE: Strange case re essential functions of the job What did the court rule? Yep, you guessed it - the court granted her a trial on the grounds that if she were not able to perform the essential features of the job, the company could (and had to) prove that. (working is a major life activity and thus she was covered by ADA; the reason I am presenting these strange cases - burden placed on companies and while our sympathies may lie with the disabled generally, think of yourself as a selection specialist advising the company about what it should do)

39. SO 21: Essential job functions, critical steps for a selection specialist • The job analysis should include a list of the essential functions • Typical job analyses don’t do this • Job descriptions that explicitly state the essential functions need to be developed for every position and updated frequently • New hires/employees should sign off on the job descriptions (back to the Sos: this is for the exam)

40. SO17: What is meant by a “qualified individual with a disability”? • It is a person with a disability who meets the job-related requirements and can perform the essential functions of the job, with or without reasonable accommodation (Back to the definition of a qualified individual to get us back to the topic of accommodation)

41. SO18: When doesn’t an employer have to provide a “reasonable accommodation?” • When it causes undue hardship for the organization It is pretty unclear, however, what “undue hardship” constitutes. • NFE: What factors influence “undue hardship?” Nature and cost of the accommodation; size, type, and nature of the facility and its parent company Accommodation is judged on a case by base basis and related to both the job and the nature of the disability

42. SO19 NFE: What is a reasonable accommodation? • This area is a legal nightmare • Some examples, however, of reasonable accommodations include those given in the text • Physical changes to the workplace that make it more accessible: ramps, larger restrooms • Restructuring jobs • Altering work schedules • Altering equipment • Reassigning jobs • Modifying exams and training materials • Providing interpreters

43. SO19 NFE: What is a reasonable accommodation? • Most of them are not relevant to selection specialists; however there are three that are very relevant • Test accommodations (which I will deal with in a moment) • Attendance • Getting along with others

44. SO20: Attendance -- essential job function and reasonable accommodation • All employers consider regular, predictable attendance to be an essential job function, thus most do not list it in a job description • Some cases under the Rehabilitation Act state that attendance is an essential job function even if not stated in the job description • But these cases involve absenteeism on a scale that would astonish most employers • EEOC has claimed that absences are a “reasonable accommodation” • EEOC maintains that absence from the job (due to a disability) is a reasonable accommodation even if that absence extends eight to twelve months (and some courts have ruled in favor of longer times) • Most courts have made contradictory rulings, but no cases have reached the Supreme Court

45. SO20: Attendance – essential job function and reasonable accommodation • Even though regular, predictable attendance may be an essential job function, a particular numerical level of attendance may not be • Accommodation of appointments with a psychologist is considered to be a reasonable accommodation • Hospitalization is considered to be a reasonable accommodation • Leave of absence is considered to be a reasonable accommodation • Attendance policies should be applied in a discretionary way, using # and frequency of absences, and patterns (adjacent to weekends or holidays • Take-home point for selection specialists and SO20: You should include coming to work and attendance as essential functions of the job in the job analysis and job descriptions and notify all applicants of its requirements. • Back it up with data from the job analysis, otherwise, you may lose that challenge, even if you list it as an “essential job function.”

46. SO20 NFE: Excellent example of wording – from a recent job ad at Kellogg’s The ability to work a full shift, come to work on time, work overtime as needed and the ability to work according to the necessary schedule to meet the job requirements with or without accommodation is an essential function of this position.

47. SO20: Getting along with others as an essential job function • If rude, insubordinate, or disruptive behavior can be attributed to a mental disorder or medications being taken for the mental disorder, as long as it does not involve violence or serious threats of violence (the direct threat clause of ADA - later), it is protected by ADA and must be accommodated. • If getting along with others is required, again it should be explicitly stated as an essential job function in the job analysis and job description and notify all applicants of its requirements

48. 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 22-23 are straightforward so I am moving to 24&25; 24&25 are related - medical testing and examinations; VERY IMPORTANT!!!!)

49. 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

50. 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