2-Stage

PR and ADA

Background

The Americans with Disabilities Act (ADA) places some restrictions on personnel management. Some users of our services have requested information. We are pleased to share some results of our explorations and consultation with our attorney, but emphasize that, at this stage, these are only opinions. While case law and precedent from similar issues guide counsel, there have as yet been no decisions on ADA itself.

In general, the law tries to encourage fair employment opportunities for persons with disabilities by restricting the information an employer may obtain and consider, both as to content and timing. Employers can evaluate the candidate’s ability to perform the tasks of the job, provided that the job descriptions are properly defined and the evaluations are clearly and directly connected to those tasks. They cannot make inquiries as to disability, or perform medical examinations, until after a conditional offer of employment, and then only if everyone working in that job category must take the examination.

Rejection of an otherwise qualified candidate must be based only on evidence that the person’s condition prevents successful job performance, even with reasonable accommodation. Employers are required to provide reasonable accommodation, but not required to take steps that will result in undue hardship to the employer. What is “reasonable accommodation?” What is “undue?” The courts will eventually decide.

 

Applicability to Public Safety Agencies

As of July 26, 1994, ADA applies to “employers” having 15 or more employees. State and local governments are specifically included. While a local law enforcement agency with fewer than the minimum number of employees may be exempt, it may be treated as a “joint employer” with other parts of local government. It seems prudent for all agencies to comply.

 

Screening under ADA

How does all of this affect the use of our psychological assessments of public safety officer candidates? No one can be certain; no legal precedents yet exist. The courts have traditionally been very supportive of the need to screen officers, and even have sometimes held that such screening should or even must be done. Still, until there are court cases, prediction is risky.

Some customers have expressed concern that psychological evaluations may be held to be akin to “medical examinations” which, under ADA, are not permitted until after a conditional offer of employment has been made. We believe that so defining our psychological assessments would be an error.

The Psychological Services Section of IACP has publicly expressed its opinion that modern psychological evaluations do not follow the “medical model” and do not rely on diagnoses of disabling conditions. Rather, they state, police psychologists assess behavioral patterns and personality characteristics, which have been found to be predictive of police officer performance.

We could not agree more! Our assessments search for evidence of poor ability to learn the complex demands of public safety performance, of poor judgment, of difficulty in self-control, and of lack of sufficient discipline. We report such findings so as to reduce the probability that persons showing such unfavorable characteristics will be employed in the highly sensitive position of a law enforcement professional.

Our tests ask neither about the history of disabilities, nor about their presence. Moreover, we avoid questions about private matters, questions which (in a different context) have been successfully challenged in one state supreme court. We neither examine, nor report responses to individual questions, be they common or deviant. Our programs and reports speak not in diagnoses, but in probabilities of good or poor officer performance.

 

Changes

We have made some changes designed to reduce the chances of departments who use our services being challenged for possible violation of ADA. They are as follows:

  1. Our test have never asked about, nor focused upon the diagnosis of mental or emotional illnesses or disabilities. In fact, we selected our tests in part to avoid that type of inquiry, believing that certain often asked questions are not the business of the (potential) employer. Rather, we have evaluated traits and characteristics which relate clearly to the job demands of public safety. Nevertheless, there were places in our reports where we followed old habits of the “psychologist trade” and lapsed into language that could be misinterpreted. We have revised those few places.
  2. Our efforts to provide departments with the maximum amount of useful information have resulted in our furnishing three reports, only one of which was addressed to the hiring decision. These have, by all accounts, been helpful to various departments in some cases. We furnished them routinely because, frankly, it was more efficient than producing them at a later point in time.

With the advent of ADA, two of these reports could cause problems if considered in the pre-employment phase. One, which speaks to the issues of management of stress related disorders, could be interpreted as medically related and thus inappropriate pre-employment under ADA. The detailed psychological report, while not diagnostic or disability-oriented, nevertheless “speaks to” the clinical psychologist or psychiatrist and, again, could be misinterpreted as “medically related.” Again, that may make it inappropriate pre-employment under ADA.

We have therefore decided to alter the manner in which these reports are furnished. Routinely, the department will receive the normal report containing hiring recommendations, bound in a light blue folder, as has been the case to date. The other two reports, bound in tan and yellow colored folders, will be sent to the department only when we are notified that the person has progressed to the stage of, at least, a conditional offer of employment. There will be no additional cost to the department for this somewhat more demanding service. Alternatively, if you plan to test after giving a conditional offer of employment, simply let us know and we will send all three reports, initially.

 

Summary

Many psychological experts believe that psychological screening of public safety candidates violates neither the spirit nor the letter of ADA. We heartily agree. To reduce the possibility of challenge for departments using our service, we have made some modest changes in reporting and in procedures.

Public Safety Department commanders should, nevertheless, be aware that no one can predict, at this stage, what various courts may decide as the interpret ADA. While courts have historically been supportive of public safety needs for competent, dependable officers, there are no guarantees. Proper caution and suitable legal consultation are recommended.

 

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