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Chapter IV: Establishing Nondisciminatory Qualification Standards And Selection Criteria

4.3 What is Meant by "Job-Related" and "Consistent with Business Necessity"?

1. Job-Related

If a qualification standard, test or other selection criterion operates to screen out an individual with a disability, or a class of such individuals on the basis of disability, it must be a legitimate measure or qualification for the specific job it is being used for. It is not enough that it measures qualifications for a general class of jobs.

For example: A qualification standard for a secretarial job of "ability to take shorthand dictation" is not job- related if the person in the particular secretarial job actually transcribes taped dictation.

The ADA does not require that a qualification standard or selection criterion apply only to the "essential functions" of a job. A "job-related" standard or selection criterion may evaluate or measure all functions of a job and employers may continue to select and hire people who can perform all of these functions. It is only when an individual's disability prevents or impedes performance of marginal job functions that the ADA requires the employer to evaluate this individual's qualifications solely on his/her ability to perform the essential functions of the job, with or without an accommodation.

For example: An employer has a job opening for an administrative assistant. The essential functions of the job are administrative and organizational. Some occasional typing has been part of the job, but other clerical staff are available who can perform this marginal job function. There are two job applicants. One has a disability that makes typing very difficult, the other has no disability and can type. The employer may not refuse to hire the first applicant because of her inability to type, but must base a job decision on the relative ability of each applicant to perform the essential administrative and organizational job functions, with or without accommodation. The employer may not screen out the applicant with a disability because of the need to make an accommodation to perform the essential job functions. However, if the first applicant could not type for a reason not related to her disability (for example, if she had never learned to type) the employer would be free to select the applicant who could best perform all of the job functions.

2. Business Necessity

"Business necessity" will be interpreted under the ADA as it has been interpreted by the courts under Section 504 of the Rehabilitation Act.

Under the ADA, as under the Rehabilitation Act:

If a test or other selection criterion excludes an individual with a disability because of the disability and does not relate to the essential functions of a job, it is not consistent with business necessity.

This standard is similar to the legal standard under Title VII of the Civil Rights Act which provides that a selection procedure which screens out a disproportionate number of persons of a particular race, sex or national origin "class" must be justified as a "business necessity." However, under the ADA the standard may be applied to an individual who is screened out by a selection procedure because of disability, as well as to a class of persons. It is not necessary to make statistical comparisons between a group of people with disabilities and people who are not disabled to show that a person with a disability is screened out by a selection standard.

Disabilities vary so much that it is difficult, if not impossible, to make general determinations about the effect of various standards, criteria and procedures on "people with disabilities." Often, there may be little or no statistical data to measure the impact of a procedure on any "class" of people with a particular disability compared to people without disabilities. As with other determinations under the ADA, the exclusionary effect of a selection procedure usually must be looked at in relation to a particular individual who has particular limitations caused by a disability.

Because of these differences, the federal Uniform Guidelines on Employee Selection Procedures that apply to selection procedures on the basis of race, sex, and national origin under Title VII of the Civil Rights Act and other Federal authorities do not apply under the ADA to selection procedures affecting people with disabilities.

A standard may be job-related but not justified by business necessity, because it does not concern an essential function of a job.

For example: An employer may ask candidates for a clerical job if they have a driver's license, because it would be desirable to have a person in the job who could occasionally run errands or take packages to the post office in an emergency. This requirement is "job- related," but it relates to an incidental, not an essential, job function. If it disqualifies a person who could not obtain a driver's license because of a disability, it would not be justified as a "business necessity" for purposes of the ADA.

Further, the ADA requires that even if a qualification standard or selection criterion is job-related and consistent with business necessity, it may not be used to exclude an individual with a disability if this individual could satisfy the legitimate standard or selection criterion with a reasonable accommodation.

For example: It may be job-related and necessary for a business to require that a secretary produce letters and other documents on a word processor. But it would be discriminatory to reject a person whose disability prevented manual keyboard operation, but who could meet the qualification standard using a computer assistive device, if providing this device would not impose an undue hardship.