Being Careful What You Wish For (And Ask About): Pre-Employment and Post- Injury Testing Kunkel & Fink LLP Gregory T. Kunkel Marcus & Shapira LLP Beth M. Henke

Risk-Reward Analysis Consider: Allegations of racial bias Allegations of racial bias Allegations of gender bias Allegations of gender bias Allegations of disability bias Allegations of disability bias Just ask Dial Corporation... Or SEPTA...

Statutes Implicated The Big 3 (plus 1): Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 Americans with Disabilities Act /Rehabilitation Act Americans with Disabilities Act /Rehabilitation Act Pennsylvania Human Relations Act Pennsylvania Human Relations Act Title II of GINA Title II of GINA The agencies involved: Equal Employment Opportunity Commission Equal Employment Opportunity Commission Pennsylvania Human Relations Commission Pennsylvania Human Relations Commission Office of Federal Contract Compliance Programs Office of Federal Contract Compliance Programs

Getting Started Conduct a job analysis Conduct a job analysis –Activities actually involved –Knowledge actually required –Skills actually required –Abilities actually required –Characteristics of a successful incumbent

Getting Started Is testing really necessary? Is testing really necessary? –Could on-the-job training work? –Is safety of others implicated? –Valid predictor of success?

Getting Started Identify appropriate tests Identify appropriate tests –Measure the essential, job-related knowledge, skills and abilities that are consistent with business necessity –Test validity Content validity Content validity Criterion-related validity Criterion-related validity Construct validity Construct validity *Uniform Guidelines on Employee Selection Procedures*

Implementing the Test Administer the test to incumbents Administer the test to incumbents Establish guidelines for the testing Establish guidelines for the testing Timing (pre-offer v. post-offer) Timing (pre-offer v. post-offer) “Consent to Testing” “Consent to Testing” Detailed test instructions Detailed test instructions –Purpose of the test –Task(s) to be performed/tested –Relevant expectations –Time limits Consider accommodations Consider accommodations

After the Test When a fail is not really a fail... When a fail is not really a fail... The interactive process The interactive process Document. Document. Document. Possibly, in a separate file. Document. Document. Document. Possibly, in a separate file.

Strategies for Protection Use only validated tests Use only validated tests Pick your vendor with care Pick your vendor with care Perform regular audits Perform regular audits Rely on more than just tests Rely on more than just tests Stay current with the DOL and state laws Stay current with the DOL and state laws

Navigating Pre-Employment Inquiries 1995 EEOC Guidance on Pre- Employment Inquiries 1995 EEOC Guidance on Pre- Employment Inquiries What an employer can ask: What an employer can ask: –Ability to perform specific job functions –Non-medical qualifications and skills –Accommodations for the hiring process –Ability to meet attendance requirements –Physical agility tests

Navigating Pre-Employment Inquiries What an employer cannot ask: What an employer cannot ask: –Whether an applicant will need a reasonable accommodation to perform the job –Whether an applicant can perform major life activities (e.g., standing, lifting, walking) –About use of legal drugs

Post-Injury Testing Ability to perform specific job duties Ability to perform specific job duties Risk of direct harm to others Risk of direct harm to others Drugs? Drugs? Unions Unions FMLA FMLA “100% Healthy” Policies “100% Healthy” Policies

Being Careful What You Wish For (And Ask About): Pre-Employment and Post- Injury Testing Kunkel & Fink LLP Gregory T. Kunkel Marcus & Shapira LLP Beth M. Henke