EEOC informal discussion letters

If you're an HR professional in the U.S., chances are you've been to the EEOC's webpage many times. You may even subscribe to their feed. But do you know about their informal discussion letters?

These memos are written by EEOC legal staff, and while they are not "official opinions" of the Commission, they offer insight into several important issues. Consider some of the recent letter titles:

- Background checks of peace officers and the ADA (certain documents may be evaluated post-offer)

- Title VII and ADEA: Job Advertisements (you can "encourage" certain groups to apply, but "seeking" them is probably not a good idea; "journeyman" probably okay)

- ADA: Disability-Related Inquiries; Hiring (screening people out based on medical information must be shown to be job-related and consistent with business necessity)

- Title VII: Use of Conviction Records in Hiring (person convicted for auto-stripping could probably be rightfully denied a tow truck license or job)

- Americans with Disabilities Act: Periodic Testing (questionable whether periodic medical exams of all city bus drivers would be legal)

How good are you at test accommodation?

How good is your organization at accommodating individuals with disabilities when test-time rolls around?

A recent article in Diversity Executive magazine highlights the work of Certiport, a software certification outfit, and the different test accommodations they offer, including:

- Voice recognition software

- Test assistants/surrogates

- Separate, larger rooms

- Extended test times

The article also points out some disturbing facts, like the 70% unemployment rate of individuals with disabilities and the fact that 2 out of 3 of these unemployed individuals would like to work.

Makes me wonder (for the millionth time) about the true nature of the looming "talent shortage"...

Tips for hiring more individuals with disabilities

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a report titled Improving the participation rate of people with targeted disabilities in the federal workforce.

Long title aside, the report offers all employers some concrete suggestions for increasing the hiring rate of individuals with disabilities, a chronically underemployed segment of the population. These recommendations include some that you probably have already thought of (establish a task force, train your managers, recruit broadly) but also include some you may not have:

- Ensure hired individuals can perform the essential functions of the position (so you don't set people up for failure)

- Use a panel interview to minimize bias of a single individual (which we know is a best practice for interviews generally)

- Use clear language and avoid jargon on job announcements (something we should be doing anyway)

- Encourage people with disabilities to self-identify and ensure confidentiality (your numbers may be artificially low)

There's a lot of good information and resources in the report that go beyond the federal workforce. Definitely worth checking out.

Big Disability Discrimination Decision for California Employers

On August 23, 2007, the California Supreme Court published an important decision in the case of Green v. State of California. The decision should be reviewed by any employer covered by California's Fair Employment and Housing Act (FEHA), which like the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities.

What'd they say? Rather than muddy the waters, I'll quote directly from the case:

"The FEHA prohibits discrimination against any person with a disability but, like the ADA, provides that the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation. (§ 12940, subd. (a)(1); 42 U.S.C. § 12112(a).) After reviewing the statute's language, legislative intent, and well-settled law, we conclude the FEHA requires employees to prove that they are qualified individuals under the statute just as the federal ADA requires." (pp. 1-2)

"...we conclude that the Legislature has placed the burden on a plaintiff to show that he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation)." (p. 5)

What does this mean? It means employers covered by FEHA can breathe a little easier, and employees bringing suit under FEHA for a disability claim may have a slightly more uphill battle. The court has now made clear that in these cases it is the plaintiff/employee who has the burden of showing they are "qualified" under FEHA, not the defendant/employer. And if the plaintiff can't satisfy this "prong" of their case, they won't win.

...unless this case is appealed to the U.S. Supreme Court...