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Old 08-12-2018, 12:43 PM   #1  
Excargodog
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Joined APC: Jan 2018
Posts: 2,173
Default Is use of the Hogan consistent with the ADA?

The ADA was amended after Sutton's vs United Airlines in such a way that made the definition of who was covered more expansive.

The current Americans with Disability Act covers individuals that are:

a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment(as described in paragraph (3)).

Being regarded as having such an impairment means:

For purposes of paragraph (1)(C):

(A) An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

.....

For covered entities - and that would include all certificated US carriers,the law states:

Sec. 12112. Discrimination

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

And again,in fairness, exceptions can be made for "business necessity."

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

(b) Construction

As used in subsection (a) of this section, the term "discriminate against a qualified individual on the basis of disability" includes

(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;

(2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);

......

While I am not a lawyer it would seem very likely to me that qualifying or disqualifying a person from employment based upon the Hogan Test, the MMPI, or any other test not required by the FAA in granting a 1st class physical, would see on its face to be in violation of the ADA unless BOTH of two conditions were met:

1. First, the efficacy of the test for the purpose of its use would have to be demonstrated to the satisfaction of the legal community.
2. Then the business necessity would need to be demonstrated.

A company's corporate belief or historical use of something like the Hogan for discriminating against job applicants would not in itself be sufficient. Some actual science or statistical based studies would likely be required.

And even then, if the first requirement could be met, it would seem that the business case is flimsy indeed, since there are many competing airlines that seem to be prospering without using Hogan testing or MMPI.

At the very least, instituting a lawsuit (or even a class action lawsuit) would have the effect of opening the application process up to legal discovery, something I'm not sure any of the HR people would really prefer.

Just my opinion though. I haven't taken the Hogan yet, so I wouldn't have standing to sue.
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