Page 44 - ATR 2 2015 web

other things, the employee passing a
DOT medical examination. However,
“traNsportatioN employers that impose because insulin-dependent diabetics
dot medical examiNatioN requiremeNts oN are disqualified under the regulations
peripheral positioNs that iNvolve some, But from being certified to operate a vehicle
in interstate commerce, the employee
Not suBstaNtial amouNts of, driviNg should failed his DOT exam. Accordingly,
re-evaluate whether such qualificatioN FedEx subsequently withdrew the job
staNdards are joB-related aNd coNsisteNt offer because the employee could not
perform the essential job function of
with a BusiNess Necessity.” test-driving with or without reasonable
accommodation.
The employee filed a disability dis-
lights the EEOC’s focus on screening qualifications, not past convictions crimination suit against the company
practices. because of the alleged disparate impact alleging that the qualification standard
An older case provides additional such questions have on minority popula- (i.e., obtaining a favorable DOT medi-
guidance on this issue. In El v. South tions. Additionally, background checks cal examination) was improper because
Eastern Pennsylvania Transportation are fertile ground for entrepreneurial the mechanic job did not require inter-
Authority (SEPTA), an African plaintiffs looking for a new wave of class state driving. The company defended
American who was rejected for a job as action lawsuits under the Fair Credit its actions because it was attempting to
a para-transit driver due to a 40-year- Reporting Act. Because the EEOC will be comply with the FMCSA regulations.
old second-degree murder conviction actively pursuing the right “test case” for The district court found in favor of
sued when he was denied the position litigation, employers should work closely the company, but the Eleventh Circuit
under the employer’s policy of not hir- with legal counsel to carefully craft poli- Court of Appeals reversed because a
ing anyone with convictions for “moral cies that address the differences between question of fact existed as to whether
turpitude or violence.” Upholding acceptable and unacceptable levels of test driving was an essential function of
SEPTA’s practices on a limited basis, the risk in their hiring policies and criminal the technician job.
Third Circuit cautioned employers that background checks. Under the ADA, qualification stan-
background check hiring criteria are not dards, employment tests or other selec-
tied to a person’s ability to perform the ada & QualifiCaTion tion criteria that screen out, or tend to
job in question, but instead address the sTandaRds screen out, persons with disabilities are
risk of potential harm the individual Disability discrimination claims, unlawful unless the employer proves
would pose to the company. In fact, the particularly in the wake of the ADA the “business necessity” defense.
Court found that if El had presented Amendments Act of 2008 that broad- Qualification standards are defined
evidence of lower recidivism rates for ened the scope of prohibited conduct as the personal and professional attri-
such an old conviction, the ruling under the ADA, are on the rise. One butes—including the skill, experience,
may have gone against the employer. aspect of the EEOC’s SEP involves education, physical, medical, safety
Accordingly, hiring policies must be able impermissible qualification standards. and other requirements—established by
to distinguish between the applicants This issue is highly relevant to trans- a covered entity as requirements that
who pose an unacceptable level of risk portation employers who are subject an individual must meet in order to be
and those who do not. The lesson from to the Federal Motor Carrier Safety eligible for the job. This statutory pro-
El is that background checks should Administration (FMCSA) as the EEOC vision applies to all types of selection
be limited to analysis of information can be expected to take considerable criteria, including safety requirements,
that has a demonstrable relationship interest where applicants are denied vision or hearing requirements, walk-
to actual qualifications for the position positions for failed DOT medical exami- ing requirements, lifting requirements
being filled, so that the employer can nations. and employment tests. To successfully
withstand scrutiny in defending the use For instance, in Samson v. FedEx, assert the business necessity defense
of background checks. the applicant—an experienced vehicle to an allegedly discriminatory applica-
It is clear that this area of law mechanic and insulin-dependent Type tion of a qualification standard, test
will continue to expand and evolve. 1 diabetic—was offered a technician or selection criteria, an employer bears
Some states have contemplated joining position in a Florida airport facility. The the burden of showing that (1) the
the “ban-the-box” movement, which job responsibilities included occasional qualification standard is (a) job-related
encourages employers to choose their test-driving of company vehicles. The and (b) consistent with business neces-
best candidates based on job skills and job offer was contingent on, among sity, and (2) performance cannot be

44 aRkansas TRuCking RepoRT | issue 2 2015