Positive Trending for Claims Challenging the Legality of Pre-Employment Assessments

A variety of factors are trending in favor of eliminating the use of pre-employment assessments that violate the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, including:

• Implementation of the EEOC Strategic Enforcement Plan for 2013-2016

• The first national priority of the EEOC in the strategic enforcement plan is “eliminating systemic barriers in recruitment and hiring.”
• “[P]eople with disabilities continue to confront discriminatory policies and practices at the recruitment and hiring stages. These include … the use of screening tools (e.g., pre-employment tests …) “

• EEOC Systemic Investigation of Pre-Employment Testing and the ADA

• Stemming from more than six years of litigation by the EEOC against Kroger and Kronos 
• September 14, 2012 Third Circuit Court of Appeals decision in EEOC v. Kronos Incorporated
• It is “a proper inquiry for the EEOC to seek information about how these tests work, including information about the types of characteristics they screen out….“ Third Circuit Court of Appeals (September 14, 2012)
• Transfer of two charges from Atlanta EEOC to the EEOC office leading the systemic investigation

EEOC Focus on Disability Discrimination Litigation

• ADA claims covered the biggest percentage of the EEOC’s yearly litigation filing activity for FY 2013 
• The pie chart below provides a snapshot of the cases filed by the EEOC in the last week of the fiscal year and shows that almost half of the cases filed were based on disability discrimination.

• CVS/Rhode Island ACLU Settlement

• CVS eliminates use of pre-offer assessment as a consequence of claim by ACLU that questions from the assessment could have a discriminatory impact on people with mental impairments or disorders. 
• Please see Challenges to Pre-Employment Assessments

• Karraker Court Decision

• Rejected “form” defenses (e.g., test not reviewed by medical professional) and dismantled distinction between a test that evaluates personality and one that diagnoses mental disorders
• Please see Courts Find Tests To Be Illegal

• Adoption of the Five-Factor Model in DSM-5 by the American Psychiatric Association

• Based on two decades of research demonstrating that the five-factor model - used as the basis for many of the pre-employment personality tests - can be used as a structural model for describing and understanding personality disorders, including those within the Diagnostic and Statistical Manual of Mental Disorders (DSM)
• Please see ADA, FFM and DSM

• Significant Risk of Punitive Damages

• In addition to claims for actual or compensatory damages, which may be nominal on a per person basis, applicants may also seek punitive damages for the reckless behavior of the employers that used illegal pre-employment assessments.
• In State of Arizona v. ASARCO LLC, No. 11-17484 (9th Cir. Oct. 24, 2013), the 9th Circuit Court of Appeals held that a punitive damages award of $125,000 in an employment discrimination case finding no actual damages and $1 in nominal damages was constitutional and "did not raise judicial eyebrows."
• Please see Punitive Damages

• OFCCP issuance of non-discrimination and and affirmative action regulations for individuals with disabilities (IWDs)

• Regulations require federal contractors to achieve a 7%  workforce utilization goal of IWDs. 
• The contractors are required to achieve the 7% in each and every job group of the contractors.

Why Success Is Important

The long-term fiscal stability of the United States of America depends, in part, on ensuring that Americans with disabilities have meaningful opportunities to contribute to our collective well-being and on eliminating outdated policies that keep people in cycles of poverty and dependency.

More than two decades after the passage of the ADA, the unemployment rate for Americans with disabilities stubbornly remains nearly double that of people without disabilities, while their rate of labor force participation has continued to be abysmally low. Figures from the Bureau of Labor Statistics show that labor force participation for workers with disabilities was 20.3 percent, while the total for workers without disabilities was 69.1 percent—more than three times higher. As of April 2012, the unemployment rate for people with disabilities was 12.5 percent, versus 7.6 percent for those without disabilities.

There are many benefits of employment—work enhances skills such as communication, socialization, academics, physical health, and community skills; it factors into how one is perceived by society; it promotes economic well-being; it leads to greater opportunity for upward mobility; and it contributes to greater self-esteem. Yet only 15 percent of those with a mental disability are in the labor market. Please see So Many Job Openings, So Little Hiring.