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Chapter V: Nondiscrimination In The Hiring Process: Recruitment; Applications; Pre-Employment Inquiries; Testing

This chapter discusses nondiscrimination requirements that apply to recruitment and the job application process, including pre- employment inquiries. Chapter VI. discusses these requirements more specifically in relation to medical inquiries and examinations.

5.6 Testing

Employers may use any kind of test to determine job qualifications. The ADA has two major requirements in relation to tests:

1. If a test screens out or tends to screen out an individual with a disability or a class of such individuals on the basis of disability, it must be job-related and consistent with business necessity.

This requirement applies to all kinds of tests, including, but not limited to: aptitude tests, tests of knowledge and skill, intelligence tests, agility tests, and job demonstrations.

A test will most likely be an accurate predictor of the job performance of a person with a disability when it most directly or closely measures actual skills and ability needed to do a job.

For example: a typing test, a sales demonstration test, or other job performance test would indicate what the individual actually could do in performing a job, whereas a test that measured general qualities believed to be desirable in a job may screen out people on the basis of disability who could do the job. For example, a standardized test used for a job as a heavy equipment operator might screen out a person with dyslexia or other learning disability who was able to perform all functions of the job itself.

An employer is only required to show that a test is job- related and consistent with business necessity if it screens out a person with a disability because of the disability. If a person was screened out for a reason unrelated to disability, ADA requirements do not apply.

For example: If a person with paraplegia who uses a wheelchair is screened out because s/he does not have sufficient speed or accuracy on a typing test, this person probably was not screened out because of his or her disability. The employer has no obligation to consider this person for a job which requires fast, accurate typing.

Even if a test is job-related and justified by business necessity, the employer has an obligation to provide a specific reasonable accommodation, if needed. For example, upon request, test sites must be accessible to people who have mobility disabilities. The ADA also has a very specific requirement for accommodation in testing, described below.

2. Accommodation in testing

The ADA requires that tests be given to people who have impaired sensory, speaking or manual skills in a format and manner that does not require use of the impaired skill, unless the test is designed to measure that skill. (Sensory skills include the abilities to hear, see and to process information.)

The purpose of this requirement is to assure that tests accurately reflect a person's job skills, aptitudes, or whatever else the test is supposed to measure, rather than the person's impaired skills. This requirement applies the reasonable accommodation obligation to testing. It protects people with disabilities from being excluded from jobs that they actually can do because a disability prevents them from taking a test or negatively influences a test result. However, an employer does not have to provide an alternative test format for a person with an impaired skill if the purpose of the test is to measure that skill.

For example: A person with dyslexia should be given an opportunity to take a written test orally, if the dyslexia seriously impairs the individual's ability to read. But if ability to read is a job- related function that the test is designed to measure, the employer could require that a person with dyslexia take the written test. However, even in this situation, reasonable accommodation should be considered. The person with dyslexia might be accommodated with a reader, unless the ability to read unaided is an essential job function, unless such an accommodation would not be possible on the job for which s/he is being tested, or would be an undue hardship. For example, the ability to read without help would be essential for a proofreader's job. Or, a dyslexic firefighter applicant might be disqualified if he could not quickly read necessary instructions for dealing with specific toxic substances at the site of a fire when no reader would be available. Providing extra time to take a test may be a reasonable accommodation for people with certain disabilities, such as visual impairments, learning disabilities, or mental retardation. On the other hand, an employer could require that an applicant complete a test within an established time frame if speed is one of the skills that the test is designed to measure. However, the results of a timed test should not be used to exclude a person with a disability, unless the test measures a particular speed necessary to perform an essential function of the job, and there is no reasonable accommodation that would enable this person to perform that function within prescribed time frames, or the accommodation would cause an undue hardship.

Generally, an employer is only required to provide such an accommodation if it knows, before administering a test, that an accommodation will be needed. Usually, it is the responsibility of the individual with a disability to request any required accommodation for a test. It has been suggested that the employer inform applicants, in advance, of any tests that will be administered as part of the application process so that they may request an accommodation, if needed. (See section 5.5d above.) The employer may require that an individual with a disability request an accommodation within a specific time period before administration of the test. The employer also may require that documentation of the need for accommodation accompany such a request.

Occasionally, however, an individual with a disability may not realize in advance that s/he will need an accommodation to take a particular test.

For example: A person with a visual impairment who knows that there will be a written test may not request an accommodation because she has her own specially designed lens that usually is effective for reading printed material. However, when the test is distributed, she finds that her lens is not sufficient, because of unusually low color contrast between the paper and the ink. Under these circumstances, she might request an accommodation and the employer would be obligated to provide one. The employer might provide the test in a higher contrast format at that time, reschedule the test, or make any other effective accommodation that would not impose an undue hardship.

An employer is not required to offer an applicant the specific accommodation requested. This request should be given primary consideration, but the employer is only obligated to provide an effective accommodation. (See Chapter III.) The employer is only required to provide, upon request, an "accessible" test format for individuals whose disabilities impair sensory, manual, or speaking skills needed to take the test, unless the test is designed to measure these skills.

Some Examples of Alternative Test Formats and Accommodations:

There are a number of technical assistance resources for effective alternative methods of testing people with different disabilities.