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How to Screen Job Applicants and Avoid Liability

Q: I own and operate a business in which physically demanding work is part of the employees’ daily activities. I recently hired several employees who I thought were qualified for the job. However, I quickly learned that they weren’t in good enough health to do what was required of them. This is causing a lot of employee turnover and slowing production. How can I lawfully screen applicants to see if they are physically able to do the job?

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including hiring and discrimination

A: Tests and selection procedures are very important tools in screening applicants for employment and selecting current employees for promotion. However, you must be careful not to violate federal antidiscrimination laws when using tests in the hiring process. An employer violates the law if it intentionally uses a hiring tool to discriminate on the basis of race, color, sex, national origin, religion, disability, or age. If the use of a hiring tool disproportionately excludes persons in a particular group, it violates antidiscrimination laws — unless you can justify the test or procedure under the law.

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA) all prohibit the use of discriminatory employment tests and selection procedures.

Some states and municipalities also have laws prohibiting discrimination in the workplace that are stricter than federal laws. Employers should check theirr state employment laws as well.

State-by-state comparision of 50 Employment Laws in 50 States, including discrimination laws

Title VII. Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. Administering a strength test may have a disparate impact on female applicants. Determining whether there is a disparate impact may require statistical analysis.

If a physical test does result in a disparate impact on women, you must be able to show that the selection procedure is job-related and consistent with business necessity. You can do that by showing that the physical ability tested is necessary for the safe and efficient performance of the job. Thus, your selection procedure should evaluate skills that are needed to successfully perform the job sought by the applicant. Additionally, you must be able to show there is no less discriminatory alternative to the chosen selection procedure being used.

Title I of the ADA. Title I of the Americans with Disabilities Act prohibits private employers and state and local governments from discriminating against qualified individuals with a disability on the basis of their disability. Under the ADA, you may not make disability-related inquiries until after a conditional job offer has been made. You may then ask disability-related questions and conduct medical exams as long as you do so for all individuals entering the same job category.

If the use of a particular employment test screens out (or tends to screen out) individuals with disabilities, it may not be used unless you can show that it is job-related and consistent with business necessity. You are also required to make reasonable accommodations to the physical exam of an otherwise qualified applicant with a disability unless doing so would impose an undue hardship.

Americans with Disabilities (ADA) Compliance Manual

ADEA. The Age Discrimination in Employment Act prohibits discrimination based on age (40 and older) with respect to any term, condition, or privilege of employment. You may not select individuals for hire, promotion, or a reduction in force in a way that unlawfully discriminates based on age.

The ADEA prohibits disparate treatment discrimination (i.e., intentional discrimination based on age). Similarly, it prohibits you from using neutral tests or selection procedures that have a discriminatory impact based on age unless the challenged employment action is based on a reasonable factor other than age. If a test or selection procedure has a disparate impact on individuals based on age, you must be able to show that the test or selection procedure is reasonable.

Bottom line. Employers should be careful to administer physical tests and other selection procedures without regard to sex, age, or disability. Additionally, they should ensure that the test or procedure used is properly validated for the position. If the selection procedure screens out a protected group, employers should determine whether there is an equally effective selection procedure that has a less adverse effect.