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- Conducting periodic audits of employment selection testing procedures to monitor for possible disparate impact, outdated validity studies and other potential problems
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.
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