Employers are not required to lower existing performance standards or stop using tests for a job. However, those standards or tests must be job related and uniformly applied to all employees and job candidates.
Employers may not make pre-employment inquiries about person’s disability, although employers may ask questions about the person’s ability to perform essential job functions. The timing of any medical test is important: In the event the hiring employer rescinds an offer after the medical exam, the applicant must be able to unambiguously identify the reason for the rejection as being medical. In one case, the courts found that American Airlines had not made a “real” offer to three candidates before requiring them to take their medical exams, because ( even if they passed the medical exam) the offer was still contingent on American checking their references. The medical exams showed the candidates had HIV, and American rescinded their offers. This left the question of whether it was the exams or the reference checks that torpedoed the offer, and American lost the case.
Similar limitations apply to medical exams for current employees. In one case, superiors ordered a Chicago police officer to take a blood test to determine if the level of Prozac his physician prescribed would seriously impair his ability to do his job. At the time, the officer had not blood test was therefore not job related and violated the ADA’s prohibition against into the nature or severity of an individual’s disability.
Employers should review job application forms, interview procedures and job descriptions for illegal questions and statements. For example, check for questions about health, disabilities, medical histories, or pervious workers’ compensation claims.
The ADA does not require employers to have job descriptions. But it is advisable to have them. In virtually any ADA legal action, a central question will be what are the essential functions of the job? Not having a job description will hamper the employer’s case.
Courts will tend to define “disabilities” quite narrowly. Employers may therefore require that the employee provide documentation of the disorder, and assess what effect that disorder has on the employee’s job performance. Employers should therefore ask questions such as: Does the employee have a disability that substantially limits a major life activity? Is the employee qualified to do the job? Can the employee perform the essential functions of the job? Can any reasonable accommodation be provided without creating an undue hardship on the employer?
Employers “do not need to allow misconduct or erratic performance” (including absences and tardiness) even if that behavior is linked to the disability.
The employer does not have to create a new job for the disabled worker nor reassign that person to a light duty position for an indefinite period, unless such a position exists.
Finally, one expert advises, don’t treat employees as if they are disabled. If they can control their conditions (for instance, through medication), courts usually won’t consider them disabled. However, if their employers treat them as disabled (for instance, with respect to the jobs they’re assigned) they’ll normally be “regarded as” disabled and protected under the ADA.
Enforcing equal employment laws with international employees:
For most employers today, their workforces are increasingly international, and this complicates the task of applying equal employment laws. For example, Dell recently announced additions to its workforce in India. Are US citizens working for Dell abroad covered by US equal opportunity laws? Are non-US citizens covered? Are non-US citizens working for Dell in the US covered?
In practice, the answers depend on the interplay of US Laws, international treaties, and the laws of the countries in which the US firms are doing business. For example, CRA 1991 specifically covers US employees of US firms working abroad. But in practice, the laws of the country in which the US citizen is working mat take precedence (for instance, some foreign countries have statutes prohibiting the employment of women in management positions).There is also the practical difficulty of enforcing law4s like CRA 1991 abroad. For example, the EEOC investigator’s first duty in such a case is to analyze the finances and organizational structure of the overseas employer, but in practice few investigators are trained for his duty and no precise standards exist for such investigations. Similarly one expert says US courts are little help in overseas investigations, because few foreign nations cooperate with the intrusive enforcement of US civil law.