The ADA Title I Medical Examination Disconnect
Over the decades, and as recently as the May 16, 2007 hearing of the Equal Employment Opportunity Commission , the issue of employment testing under the Uniform Guidelines on Employee Selection Procedures (UGESP) has focused on psychometric forms of testing. Employment testing within the limits of ADA Title I medical examinations (42 U.S.C. § 12112 (d) medical examinations and inquiries of a physical nature has never enjoyed the same scrutiny as its Title VII paper and pencil brethren.
Each day, across America, hundreds of workers’ compensation, conditional hire, return-to- work, and stay-at-work medical examinations are conducted by physicians, occupational therapists, physical therapists, and ergonomists. A large number of these examinations are administered to individuals who are job attached and therefore are protected by the tenets of ADA Title I. And very few of these physical employment tests are faithful to the best practice strictures put forth by Congress, enforced by the Equal Employment Opportunity Commission and adjudicated by the federal courts.
Self-policing of best practice standards by medical professionals has not risen to the point of considering the demands of Title I. Many purveyors of work evaluation services (post-offer testing, functional capacity evaluation, physical capacity evaluation, and job analysis) have focused on the technology of work evaluation while disregarding how that technology supports or violates the civil rights of those seeking access to the enjoyment of the benefits and privileges of employment.
And the problem goes deeper. The EEOC Strategic Enforcement Program tends to focus energy on sustainable outcomes that respond to large group violations. Unless a charge equates to those in EEOC v. Dial Corporation or the recent EEOC v. Cessna Aircraft Company No. 2:15-cv-01166, an EEOC investigation is unlikely to gain any fanfare.
One solution to this under-application of the law is for both plaintiff and defense counsel to communicate to their clients the need to update their hiring and retention practices in response to each of the tenets of Title I. Essential function job analysis to ensure the job relatedness of employment tests, individualized assessment of safe ability to execute the physical demands of the essential functions of a job, avoidance of medical or disability questions in the interview process, and aggressive use of reasonable accommodation to restore a disabled worker to “fully qualified” status are each potential areas of abuse of Title I. Employers are well advised to instruct vendors of Title I services to incorporate the demands of the law into their services.
Learn how to Navigate the EEOC Request for Information, Mediation, and Litigation Environment with our new course Litigating and Defending ADA Title I Medical Examinations
