Originally Posted by
BarrySeal
to the OP:
What is the disability you have that the Hogan will identify ?
To "win" such a case,
- you need to have a disability
- FYI that if indeed you have a disability, is the FAA aware ?
To prove discrimination in this case, you will need to (again), have a disability, and prove that the employers knowledge of said disability caused them to discriminate against you. If your FAA medical file is clean, and your driver's license has no medical limitations, what else does the Hogan employer have to use to "know" you are disabled ? They don't.
Note you CAN be disabled and have an FAA medical, but I don't think that scenario applies here.
What you say was the law before the 2008 amendment to the ADA and pretty much why the UAL won in UAL vs Sutton which was fought all the way up to the Supreme Court. But the law was changed directly in response to UAL vs Sutton, indeed several SCOTUS judges that voted in favor of UAL RECOMMENDED that it be changed because they thought UAL had no business necessity to medically disqualify anyone that the FAA deemed qualified. But also reinforced was the
"C. Being
regarded as having a disability issue".
Disqualifying on the basis of an MMPI or Hogan may indeed be considered by a court as the would-be employer
regarding the applicant as having a disability, meaning they would not be required to actually be disabled under the law.
A number of MMPI-derived personality tests have already been declared by courts to be in violation of the law and companies ordered to stop using them for pre-employment screening although to my knowledge the Hogan has not yet been challenged in this regard.
Of course all the companies using this test would need to do was to meet the 'business necessity' requirement, but based upon their own reliability testing, that would appear real difficult for them.