Tuesday, June 25, 2013

Punitive Damages

An employer utilizing an FFM-based pre-employment assessment is at risk for punitive damages where, as held by the Supreme Court in 1999, the “employer has engaged in intentional discrimination and has done so with malice or reckless indifference to the federally protected rights of an aggrieved individual.”

 As noted in the What Are the Issues post, the assessments are intentionally designed to reveal and accept “normal” personalities and reveal and reject persons with mental disabilities.  

Reckless indifference may be show by a variety of methods, including an employer’s failure to comply with the EEOC guidance, including:

  • Administering tests without regard to disability;
  • Ensuring that tests are properly validated;
  • Ensuring that tests are job-related;
  • Ensuring that tests are appropriate for the employer's purpose; and
  • Ensuring that tests and selection procedures are not adopted casually by managers who know little about these processes.
Reckless indifference may also be shown by an employer’s failure to meet industry standards. In a statement made in 2007, the general counsel of the employer-funded Equal Employment Advisory Council set out the following industry standards:

  • Tests must be based on "objective" criteria
  • A "carefully selected" test that is "properly validated" can provide a great deal of relevant information when "[u]sed in conjunction with other sources of information"
  • Ensuring each employment test has been properly validated.
  • Avoiding overreliance on representations made by test manufacturers regarding test validity and suitability for a particular job.
  • Conducting periodic audits of employment selection testing procedures to monitor for possible disparate impact, outdated validity studies and other potential problems
The Karraker decision provided clear guidance to employers that utilize personality tests. At a minimum, employers should independently determine whether the tests were medical examinations under Title I of the ADA and they should independently validate that the tests do not discriminate against disabled applicants.

As noted in the What Are the Issues post, there is no evidence that employers or assessment test providers have done any studies to determine the impact of assessments on persons with mental illness

The failure of employers to follow Supreme Court precedent that (i) requires validation of an employment test, (ii) prohibits arbitrary cut-off points, and (iii) requires differential studies of the impact of the test on protected classes (persons with mental illness) – reckless.