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244 | Recruitment and Selection Law for Local Government Employers
Administering pre-employment and promotional tests to persons with disabilities presents unique challenges of which employers should be aware. The ADA’s reasonable accommodation requirement applies not only to accommodating employees in the performance of their job duties, but to the test-taking process itself—whether the test is of an applicant for employment or part of a promotional process for existing employees. As a matter of law (and common sense), tests should not be given in formats that require use of the impaired skill, unless it is a job-related skill that the test is intended to measure.91 For example, it would be unlawful to administer a written employment test to an individual who has dyslexia and is unable to read. In this case, an alternative oral test would need to be administered to that person. By the same token, a written test may need to be substituted for an oral test if the applicant taking the test is an individual with a disability that impairs speaking skills or impairs the processing of auditory information. For persons with vision or hearing disabilities, other alternative or accessible test modes or formats include the administration of tests in large print or braille or via a reader or sign interpreter. Where it is not possible to test in an alternative format, the employer may be required, as a reasonable accommodation, to evaluate the skill to be tested in another manner (for example, through an interview, or through education, license, or work experience requirements).92
To continue with the example of a written employment test, where the ability to read is job related and the test is designed to measure that skill, an accommodation would not be required. Where an examination, whether written or physical, is testing a skill, and the amount of time it takes to complete the test is not job related, an applicant with a disability may be entitled to an extension of time in which to complete the test. On the other hand, where the test is designed to measure speed and speed is an essential function of the job, no reasonable accommodation would be necessary for the test—although the employer would be required to consider whether some other form of reasonable accommodation would permit the applicant
authors found not a single federal decision that analyzed a failure to accommodate claim under disparate impact analysis).
91. See 29 C.F.R. § 1630.11.
92. See Appendix to 29 C.F.R. Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act, comment on 29 C.F.R. § 1630.11.
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| Title | Recruitment and selection law for local government employers - Page 260 |
| Full Text | 244 | Recruitment and Selection Law for Local Government Employers Administering pre-employment and promotional tests to persons with disabilities presents unique challenges of which employers should be aware. The ADA’s reasonable accommodation requirement applies not only to accommodating employees in the performance of their job duties, but to the test-taking process itself—whether the test is of an applicant for employment or part of a promotional process for existing employees. As a matter of law (and common sense), tests should not be given in formats that require use of the impaired skill, unless it is a job-related skill that the test is intended to measure.91 For example, it would be unlawful to administer a written employment test to an individual who has dyslexia and is unable to read. In this case, an alternative oral test would need to be administered to that person. By the same token, a written test may need to be substituted for an oral test if the applicant taking the test is an individual with a disability that impairs speaking skills or impairs the processing of auditory information. For persons with vision or hearing disabilities, other alternative or accessible test modes or formats include the administration of tests in large print or braille or via a reader or sign interpreter. Where it is not possible to test in an alternative format, the employer may be required, as a reasonable accommodation, to evaluate the skill to be tested in another manner (for example, through an interview, or through education, license, or work experience requirements).92 To continue with the example of a written employment test, where the ability to read is job related and the test is designed to measure that skill, an accommodation would not be required. Where an examination, whether written or physical, is testing a skill, and the amount of time it takes to complete the test is not job related, an applicant with a disability may be entitled to an extension of time in which to complete the test. On the other hand, where the test is designed to measure speed and speed is an essential function of the job, no reasonable accommodation would be necessary for the test—although the employer would be required to consider whether some other form of reasonable accommodation would permit the applicant authors found not a single federal decision that analyzed a failure to accommodate claim under disparate impact analysis). 91. See 29 C.F.R. § 1630.11. 92. See Appendix to 29 C.F.R. Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act, comment on 29 C.F.R. § 1630.11. |
