We had a wonderful response to our last webinar and such great questions that came in that were not able to be addressed due to time constraints. So, we’ve put together a blog post that provides answers to those questions which have been answered by two EEO experts from the law firm of Kastner, Westman and Wilkins, John McKenzie and Julie Trout, who made the webcast presentation.
The IPCS Webcast and the following questions and answers are for informational purposes only and not for the purposes of providing legal advice.
Question 1: “Can you elaborate on the 4/5’s rule? What efforts does a company need to make in the event the 80% is not achieved? Are they obligated to meet the 80% mark or just have to show that they recognize this and are making efforts achieve. I think the jobs we have are a disproportionate number of males pass vs. females.”
Answer: According to Uniform Guidelines, a selection rate for any race, sex, or ethnic group that is less than 4/5 (or 80%) of the selection rate for the group with the highest selection rate will generally be considered evidence of adverse impact. If the 80% is not achieved , use of the selection procedure that has adverse impact is considered discriminatory unless the employer ensures that the procedure has been validated in accordance with the Uniform Guidelines. This does not require that the 80% mark be achieved, but does require the employer to comply with the requirements detailed by the Uniform Guidelines regarding validation studies.
Question 2: Can you elaborate on the validation types you noted in the presentation? What does our process need to be when writing the job description/analysis regarding who should review and how it should be signed off on by the company. Additionally, who and how many company reps should go through the IPCS test prior to initiating testing?
Answer: The Uniform Guidelines contain very detailed requirements for the different types of validation studies, which are set forth at 29 C.F.R. § 1607.01 et seq. (an unofficial version of which is available at http://www.gpo.gov/fdsys/pkg/CFR-2016-title29-vol4/xml/CFR-2016-title29-vol4-part1607.xml ). The job analysis process should be thorough, and should include a review of the items discussed during the webcast, including: which job behaviors or outcomes are critical or important; proportion of time spent on respective behaviors; level of difficulty of behaviors; frequency of performance; and consequences of error. The job analysis should include review by those who are most familiar with the job, which may include the employee(s) in the job itself, as well as the supervisor of the position. There are no specific requirements for how to sign off on a job analysis, but it should be reviewed and approved by those who have adequate familiarity with the position, as well as property authority from the employer. The Uniform Guidelines do not contain any requirements that a particular number or type of company representatives go through a selection procedure prior to initiating testing.
Question 3: Validation Study: “I’ve relied on IPCS to provide support regarding the legal foundation for the testing based on the ratings applicable to our physical demand assessments. Today’s webcast seemed to suggest each employer should conduct their own validation study. Does the research IPCS does and the requirement to provide a physical demand assessment eliminate the need for the validation study?”
Answer: While the research by IPCS can be used to support a validation study, it does not eliminate the need for a validation study. Generally speaking, a validation study must be specifically tailored to a particular job for a particular employer in order to meet the requirements of the EEOC’s Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”). In some circumstances, evidence of validity from other studies may be used, but an employer must still comply with the strict requirements of the Uniform Guidelines when documenting the validity of the test for each job for which the test is used.
Question 4: When you institute post offer testing and want to do it for incumbents, could you establish a policy that states something like “we are going to test you but for the first year or two we will only tell you what areas you need to improve upon”, then how can you improve overall performance and safety/fitness of your employee base?
Answer: As we explained during the webcast, under the Americans with Disabilities Act (“ADA”), medical testing of current employees may only be done under very limited circumstances. Generally speaking, across the board testing of current employees, even with a policy such as the one described above, would not comply with the ADA’s restrictions and would therefore be unlawful. If an employer would like to improve the overall performance, safety, and/or fitness of its employee base, it may implement performance improvement techniques, including performance measurement and ratings systems, safety programs, including safety reporting mechanisms or incentives, as well as voluntary health programs where employees have the choice of whether or not to participate.
Question 5: As long as the policy is consistent to all people you can test your population-yes?
Answer: As we explained during the webcast, and as detailed above, generally speaking, across the board medical testing of current employees would not comply with the ADA’s restrictions and would therefore be unlawful, even if the policy was consistent for all employees.
Question 6: Please comment on essential duties and safety sensitivity.
Answer: When performing a thorough job analysis, employers should identify the various duties of a particular position, and the specifically identify which of those duties are essential for that position. According to the EEOC (see http://www.eeoc.gov/facts/ada17.html ), an employer should consider the following factors in determining whether a particular duty is essential:
- whether the reason the position exists is to perform that function
- the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
- the degree of expertise or skill required to perform the function
If an employer considers a particular position ‘safety sensitive,’ it should have specific reasons and evidence to support that conclusion, such as an explanation of the potential consequences of unsafe performance of the position.