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Old 08-13-2018, 06:18 PM   #25  
Gets Weekends Off
Joined APC: Jan 2018
Posts: 2,638

Originally Posted by rickair7777 View Post

That was a technicality, an unintended consequence of the language used in the ADA.
Which 'that' are you referring to? The amended language or the original language?

Banning personality testing (and possibly other HR practices?) would would likely take a deliberate act of legislation, I doubt the courts could spin the ADA that far (although a few might have a go at it).
I don't know. If you read the individual Supreme Court judges opinions in Sutton, it was clear that several of them who voted in favor of UAL nonetheless believed that United requiring a higher uncorrected visual standard than the federal air surgeon was both unnecessary and abhorrent to them, but that the original phrasing of the ADA simply didn't allow them to find in favor of the two sisters. A couple went so far as suggesting the ADA BE CHANGED TO DISALLOW SUCH requirements unless it coukd be shown there was a legitimate business interest, a criteria which they clearly didn't believe UALs 'well, if one lost her glasses the airplane might crash while she fumbled around for her second pair' met.

That would open up the much broader issue of what techniques are fair and equitable in the screening of potential employees? Should interviews be restricted to avoid any nuanced influence due to personality factors? Ie you can't favor a polished, charming applicant over a toad? What then? All technically qualified applicant's names go in a hat and do a random draw for the winner?
To an extent that is already the case. Tests that discriminate against protected classes are already illegal, even if you CAN show a business interest. If any test shows a bias - generally such that any test results in a minority, female, gay, etc., being disadvantaged by 20%, the rebuttable assumption is the test is illegal. And even now the DOJ is investigating Harvard Univ for using "personality" to discriminate against Asian-Americans in admissions.

I don't think this is that big a jump.

Last edited by Excargodog; 08-13-2018 at 06:42 PM.
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