Disability Accommodations
In the
Testing Process
Introduction
Dwight Dickerson, CPDM
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Co-Owner of Chavez Dickerson Consulting Services
Disability Management Consultant
30 years of experience in Workers Compensation
15 years of experience in ADA & FEHA arena
Certified Professional Disability Manager
Clients include:
 City of Torrance
 City of Compton
 City of Huntington Beach
 Boeing
 State Compensation Insurance Fund
Session Objectives
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Define Reasonable Accommodations (RA)
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Identify Reasonable Accommodations in a Testing
Environment
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Employers Role / Obligation in identifying a Reasonable
Accommodations
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Determine your Role in the Interactive Process
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Identify Ways to Limit your Liability as an Employer
What is a Reasonable Accommodation?
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A “Reasonable Accommodation” is any modification or
adjustment in the pre-employment / testing process that will
enable a qualified applicant with a disability to participate in
the application process.
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Both ADA & FEHA requires employers to make reasonable
accommodations for applicants / employees with a disability.
“Reasonable Accommodations” protects individuals with
disabilities from being excluded or discriminated against in
the pre-employment process.
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The ADA & FEHA requires that tests be given to individuals
in a manner that does not require the use of their impaired
skill UNLESS, the test is designed to measure that particular
skill.
How is a RA “Triggered”
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An employer should tell applicants what the hiring process involves (e.g.,
an interview, timed written test, or job demonstration), and may ask
applicants whether they will need a reasonable accommodation for this
process.
During the hiring process and before a conditional offer is made, an
employer generally may NOT ask an applicant whether s/he needs a
reasonable accommodation for the job, EXCEPT when the employer knows
that an applicant has a disability -- either because it is obvious or the
applicant has voluntarily disclosed the information
If the applicant replies that s/he needs a reasonable accommodation, the
employer may inquire as to what type.
After a conditional offer of employment is extended, an employer may
inquire whether applicants will need reasonable accommodations related
to anything connected with the job (i.e., job performance or access to
benefits/privileges of the job) as long as all entering employees in the
same job category are asked the same question.
Types of Reasonable Accommodations
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Alternative Format
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Extended Time
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Reader (someone who can read test for applicant)
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Scribe (someone who writes or records test for applicant)
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Interpreter
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Sign Language
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Private Room
Reasonable Accommodation Examples
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An applicant with dyslexia should be given an opportunity to take a
test orally UNLESS reading is the skill being tested for the job.
Providing extra time to complete a test may be a “Reasonable
Accommodation” as long as SPEED is not the skill being tested.
__________
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An applicant with a visual impairment who can usually read printed
material finds that they cannot read the test because of an unusually
low color contrast between the ink and the paper.
The employer could provide the test in a higher contrast format,
reschedule the test, or make any other effective accommodation that
would not impose an undue hardship.
Employer’s Role / Obligation
I. Know the Legal and Regulatory Requirements (ADA & FEHA)
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It is discriminatory to use selection criteria that screen out individuals with
disabilities UNLESS the criteria are shown to be JOB RELATED for the position
and is consistent with business necessity.
Ensure that all tests DO NOT act as barriers to the employment of persons with
disabilities unless the person is unable to do the job even with reasonable
accommodation.
Employers should design selection criteria for jobs to ensure a close fit between
the selection criteria and an individual’s ability to the job.
Tests should not be given in formats that require use of the applicants impaired
skill, unless it is a job related skill that the test is intended to measure.
An employer is obligated to make reasonable accommodations only to the
physical or mental limitations that results from the disability of an applicant with
a disability, that are known to the employer.
Similarly, an employer is generally required to provided testing accommodations
only if it knows in advance that an applicant has a disability that requires such
accommodation
ADA and the Title I regulations prohibit pre-employment inquiry into a person's
disability or the nature of the disability, with one narrow exception. The ADA
permits employers to ask individuals with a hidden disability who request
accommodations at the application stage to provide reasonable documentation to
verify the disability and the need for accommodation.
Employer’s Role / Obligation (con’t)
II. Include Essential Functions in the Job Advertisements
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The EEOC advises employers to include information about the
essential functions of the job in job announcements, advertisements,
and other recruitment notices ; this will attract applicants, including
individuals with disabilities, who have appropriate qualifications.
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The EEOC also advises employers to consider including a statement in
job advertisements and notices that they do not discriminate on the
basis of disability or other legally prohibited bases.
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The EEOC provides the following example: "We are an Equal
Opportunity Employer. We do not discriminate on the basis of race,
religion, color, sex, age, national origin or disability."
Employer’s Role / Obligation (con’t)
III. Understand and Clearly Outline Business Necessities / Essential
Job Functions
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According to the Americans with Disability Act (ADA), an employer can only require
an employee to undergo a employment testing when the test is "job related and
consistent with business necessity." The pre-employment testing must be both of
these, not just one or the other. It is important to note that "job-related" and "business
necessity" are two distinct requirements.
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In order for a Pre-employment test to be job related under the ADA, it must actually
measure a person's ability to perform the job. For example, if the selection process is
used to screen out individuals who have a disability, that test can only be used if it
measures the person's ability to perform the job. So, an employer is not allowed to
require a person to submit to a test unless that test has some bearing on their ability
to perform the job.
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The job related requirement applies to any function or condition of the job. As long as
the pre-employment testing has something to do with your ability to perform some
function of the job, it satisfies the job related requirement. But, if a person has a
disability that prevents them from performing trivial or marginal job functions, the
ADA requires an employer to look at whether a person can perform the essential
functions of a job.
Employer’s Role / Obligation (con’t)
III. Understand and Clearly Outline Business Necessities / Essential Job
Functions (con’t)
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Under the ADA, not only must a pre-employment testing be job related, it must also
be consistent with business necessity. This means that the pre-employment testing
must relate to the essential functions of the job. So, the pre-employment testing
must test your ability to perform the core of the job. For example, if you are a
cashier at a grocery store, the essential functions of your job would be to ring
people up and help them bag their items. Any pre-employment testing your
employer required would have to be related to how you perform those functions in
order to be consistent with business necessity.
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You will need to determine the essential job functions and marginal
functions (non-essential functions) of the job position. The essential job functions
will need to be included in the job description. This information will be important
for determining if an applicant can perform the essential duties of the position with
or without reasonable accommodation.
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When describing the essential function requirements of the position, you should
also identify and describe the physical and mental performing elements that are a
necessary and integral part of the position. Try to be as specific as possible.
Interactive Process
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ADA & FEHA mandates that all employers must engage in an interactive
process to determine if a reasonable accommodation of the applicant’s
disability can be made.
The Interactive Process refers to the collaborative effort involving an
employer and applicant to determine if the applicant does in fact require a
reasonable accomadation in the pre-employment process.
This process typically involves a face-to-face meeting with the applicant
and the human resources representatiove / hiring manager to discuss the
request for reasonable accomadation.
The parties bring various ideas & suggestions to the table regarding
whether the applicant can be accommodated by making the necessary
changes or adjustments in the testing phase.
The parties may agree that a certain aspect of the testing can be modified
or changed to meet applicants disability.
Interactive Process (con’t)
Documentation
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Document applicant’s request for reasonable accomadation.
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Document any communciation initiated by Employer.
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Document the mutual agreement of reasonable accomadation
inclduing all specifics (i.e extended time, private room, etc.).
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Provide copies to applicat as well as keep in HR file.
How to Limit Your Liability in Testing Process
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Be open to the idea of providing a Reasonable Accommodation for
all Qualified Individuals with a Disability
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Utilize the ADA and FEHA guidelines to aid you in understanding
your obligation in the testing process.
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Engage in a timely and good faith Interactive Process
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Document all communication with applicant regarding request or
need for reasonable accommodation.
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Utilize external consultants to provide objective opinions and or
professional advice.
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Do NOT allow your personal feelings or opinions to influence your
business practices and decisions
Summary and Questions
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Define Reasonable Accommodations (RA)
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Outline How to Identify Reasonable Accommodations in a Testing
Environment
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Review Employers Role / Obligation in identifying a Reasonable
Accommodations
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Determine Human Resources Role in the Interactive Process
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Identify Ways to Limit your Liability as an Employer
Contact Information
Dwight Dickerson, CPDM
Chavez Dickerson Consulting
879 W. 190th
Suite 400
Gardena, CA 90248
310/516-7420 office
310/516-1659 fax
dwight@chavezdickerson.com