Lawyers Are Bad

By James Landsman

June 20, 2018 - To be clear, we are not saying that lawyers are bad people. However, a lawyer can turn a good day into a bad day for an employer by challenging the legality of a business practice.  

Many employers have had lawyers challenge post-offer pre-employment physical function screen programs.  If a screening program is not properly designed and implemented, it can be argued to be unlawfully discriminatory on the basis of a disability or other protected characteristic of a job candidate.  In today’s world, charges of discrimination are frequent, highly visible, expensive and time consuming. Accordingly, employers need to understand the right way to utilize a program that decides who can and cannot be employed. The last thing employers want is a discrimination suit.  

We believe it is important to design and implement programs that do not discriminate, but it is also important to minimize the possible perception of discrimination by a job applicant. At the end of the day, all job applicants must feel they have been given an equal and fair opportunity to be awarded a job for which they are qualified.

The good news is Atlas has been conducting a high volume of post-offer pre-employment physical function screens since 2006, and neither we nor our clients have ever been sued as a result of our screens. We are very proud of our track record to date, and we are happy to share this list of critical program characteristics and pitfalls we believe you should watch out for:

  • Everything starts with measuring the physical demands of a job’s essential functions. If your current program provider has not taken the time to visit your job site and review the job, and instead has used your written job description, data from another company or job, or simply referred to job demands databases available in research or the Dictionary of Occupational Titles / O*NET,  you are at risk.
  • The measured essential functions of a job must be reviewed and validated as complete and accurate. If your current program provider has failed to do so, you are at risk.
  • The screen design must have a direct association to the validated essential functions. If your current program provider is testing general physical capability and there is no clear association to the essential job tasks by design or in the mind of the job applicant, you are at risk.
  • Screen protocols must be validated by current employees performing the job. If your current program provider has failed to do so, you are at risk.
  • The screen protocol must be consistently followed at all screen locations. If your current program provider is using different equipment or processes at different sites, you are at risk.
  • Job applicants cannot be and should not perceive being disqualified solely based on the existence of a medical condition. If your current program provider is gathering medical history or benchmarking physical capability, and disqualifying applicants without confirming their inability to complete essential job tasks, you are at risk.  In addition, if job applicants are not clear that their medical history will not impact employment, you are also at risk. (Note: If an applicant’s current medical condition makes it too risky to proceed with the screen, the screen can be delayed until the condition is addressed.)
  • Disparate impact (or discrimination) risk needs to be calculated and reviewed on an ongoing basis. If your current provider cannot quantify the disparate impact risk for each of your screen protocols and review those findings with you annually, you are at risk.
  • The legal landscape surrounding post-offer pre-employment screens is complex and constantly changing. If your current program provider does not have the support of a strong legal team or they have a history of legal challenges, you are at risk.

The payback on post-offer pre-employment physical function screen programs is clear, and a number of service organizations want to jump on the bandwagon and offer them to employers. Unless you are not worried about discrimination risk, remember that not all programs are created equal.   

If you want to consider implementing a compliant post-offer pre-employment screen program or are worried that your current program may not be legally sound, please contact us.