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Old 08-12-2018, 08:21 PM   #11  
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I'm sure they would argue you have no disability at all, ...
I don't doubt you are right, but the revisions to the law made after Sutton were specifically designed to preclude that argument from being successful, to whit:

Fifth, the law removes from the “regarded as” prong of the disability definition (the third prong of the definition) the requirement that an individual demonstrate that the impairment that he or she has, or is perceived to have, limits a major life activity in a way that is perceived to be substantial. Under the ADAAA, therefore, an individual can establish coverage under the law by showing that he or she has been subjected to an action prohibited under the Act because of an actual or perceived physical or mental impairment that is not transitory and minor.[22] The law also explicitly states that although individuals who fall solely under the “regarded as” prong of the definition of disability are protected from discrimination, entities covered by the ADA are not required to provide accommodations, or to modify policies and procedures, for such persons.[22]

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and would be more than capable of performing the job. But they have (at least) 100 other equally qualified applicants for the same job, and are simply trying to fine tune the "fit" of their employees (for everyone's benefit).
Irrelevant under the law. Other employees might feel the "fit" would be better if Jews, African-Americans, females, or Democrats were excluded. You can't legally do that either. Well, Democrats maybe...
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Old 08-12-2018, 08:40 PM   #12  
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I think it would take a very large paradigm shift to ban personality analysis in hiring because that actually also occurs in regular interviews.
The issue isn't personality analysis per se, it's the use of tests per se. Psychological testing that discriminates between those who are presumed to be impaired applicants and those who are presumed to not be similarly impaired applicants would seem to be in direct violation of the amended law. If you look at sites that promote such testing, they are increasingly giving warning in their advertisements that this may be the case, and appropriate legal issues should be examined before instituting such testing - their means of insulating themselves from their own liability.

If you look in the professional HR literature, they too are increasingly concerned that such testing would not survive judicial scrutiny.

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About the only avenue I could imagine would be to attack the validity or fairness of the testing. That would be an uphill battle because the employers do actually have some empirical data to show...

The way those tests work, is before an organization uses them, they give the tests to their current employees. Then they identify what THEY consider to be desirable employees, and then attempt to find a consistent personality pattern across that group. Maybe they also look for patterns in problem children, to help weed them out.

Also the test companies have develop "broad" pattern matches (across many organizations) for certain types of employees, ie safety sensitive, customer service, manager, etc.
First point, I can't find anything in the literature that suggests that such testing has a predictive value positive or negative for successful employment of more than about 0.6. That's scarcely better than a flip of a coin. If you have data showing any more precision than that,I'd be glad to see it. But the validity of the testing FOR THIS PURPOSE does not seem very great.

Second point is the business necessity issue. Even if the testing were more predictive than 0.6, other people not using it in the same situation are still being successful, making it hard to argue that there is a business necessity. Simply gaining a slight business advantage over rivals is not adequate legally to defend not requiring with the law, otherwise every company could simply opt to not comply with other provisions of the ADA law, like requiring ramps for the orthopedic ally challenged. It was never imagined that passing the ADA WOULDN'T cost company's money.
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Old 08-12-2018, 09:31 PM   #13  
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https://www.ere.net/the-problem-with-personality-tests/

This is FAR more involved, but is nonetheless a great resource for anyone wanting to seriously address the validity (or lack of same) of these tests.

https://www.princeton.edu/~ota/disk2/1990/9042/9042.PDF

The table 7 (page 54) data shows how great the mis classification error in this testing is. This is from a 1990 Congressional Office of Technology Assessment study done for Congress. Although dated, there appear to have been no substantial improvements in testing since that time.
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Old 08-13-2018, 03:12 AM   #14  
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“Failing” a personality test is tantamount to a disability?

Good luck making that argument in court.
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Old 08-13-2018, 06:15 AM   #15  
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Again, I'm not advocating for the tests, and I have no detailed knowledge of their statistical utility, if any. Could be just some more BS the HR ladies made up to justify their existence.

My gut feel is that the best (only) avenue to challenge the practice would be to show that it's unfair, as opposed to an ADA violation. But unfair isn't necessarily illegal, so you'd probably have to tie it to some other law, ie discrimination for something such as gender, race, age, etc.

These things have been around for a while, you'd think some industrious shyster would have already at least considered a class action by now if there was any merit to it.

Also... you might have trouble getting pilots to join you. If they've reached their career-destination job, they probably don't care anymore. If they haven't, most probably don't want to volunteer to be on a very public list of people who fail personality tests and also sue airlines. That list would end up taped to the wall in every airline recruiter and HR manager's office. Litigious people are not a protected class, you can discriminate in hiring against them as far as I know.
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Old 08-13-2018, 07:16 AM   #16  
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Again, I'm not advocating for the tests, and I have no detailed knowledge of their statistical utility, if any. Could be just some more BS the HR ladies made up to justify their existence.

My gut feel is that the best (only) avenue to challenge the practice would be to show that it's unfair, as opposed to an ADA violation. But unfair isn't necessarily illegal, so you'd probably have to tie it to some other law, ie discrimination for something such as gender, race, age, etc.

These things have been around for a while, you'd think some industrious shyster would have already at least considered a class action by now if there was any merit to it.

Also... you might have trouble getting pilots to join you. If they've reached their career-destination job, they probably don't care anymore. If they haven't, most probably don't want to volunteer to be on a very public list of people who fail personality tests and also sue airlines. That list would end up taped to the wall in every airline recruiter and HR manager's office. Litigious people are not a protected class, you can discriminate in hiring against them as far as I know.
IN order to have standing to sue you would need to have been rejected as an applicant by an airline using such a test, but that doesn't mean that you wouldn't necessarily be successfully hired by another one. Nor would having "failed" such a test actually mean anything about you as a pilot or employee. Even those HR people who advocate for these tests acknowledge a huge false rejection rate
And see them mainly as a vehicle for cheaply culling down a massive number of advocates.

The biggest problem, IMHO, is that this is a seriously big cottage industry that is going to fight tooth and nail to stay in business, and the merit argument requires a knowledge of statistics that most people don't have, making the ADA route, or discrimination against protected classes, or similar legal argument a far easier route for the judges, jury, and regulators to understand.

But eventually some shyster may indeed pick this up. It hasn't affected me yet, but I know some guys who seem to me like great pilots and employees that claim to have been shafted by the Hogan.

Just doesn't seem right to have them brushed aside because of a test that misclassifies people so often.
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Old 08-13-2018, 07:21 AM   #17  
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“Failing” a personality test is tantamount to a disability?

Good luck making that argument in court.
Nope. The argument is that the company BELIEVES the person less able because they've scored low on the test. You do not need to be disabled to be covered by the ADA. You are covered if someone you are applying to BELIEVES that you are less able.

And again,if the company doesn't BELIEVE the test results do not discriminate against the less able, why are they testing at all?
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Old 08-13-2018, 07:56 AM   #18  
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Personality tests have *nothing* to do with ABILITY to perform a job or occupation.

Once one accepts that basic premise, any claim of discrimination and damages therein begins to fall apart.
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Old 08-13-2018, 08:00 AM   #19  
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Default Is use of the Hogan consistent with the ADA?

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Nope. The argument is that the company BELIEVES the person less able because they've scored low on the test. You do not need to be disabled to be covered by the ADA. You are covered if someone you are applying to BELIEVES that you are less able.

And again,if the company doesn't BELIEVE the test results do not discriminate against the less able, why are they testing at all?

Less able doesn’t mean someone is disabled. I love sports and generally suck at playing them. Therefore, I am less able to play them well. That doesn’t mean I’m disabled.

You’re conflating lack of ability with legitimate disabilities.

Lastly, you’re barking up the wrong tree. Thousands of people have successfully passed these tests. Given the success of the tests, you’re making a mountain out of a mole hill.
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Old 08-13-2018, 09:02 AM   #20  
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Less able doesn’t mean someone is disabled. I love sports and generally suck at playing them. Therefore, I am less able to play them well. That doesn’t mean I’m disabled.

You’re conflating lack of ability with legitimate disabilities.

Lastly, you’re barking up the wrong tree. Thousands of people have successfully passed these tests. Given the success of the tests, you’re making a mountain out of a mole hill.

The OMB report is far less certain of the "success" of such tests than you seem to be. But even if it were true, it wouldn't matter under the ADA if "reasonable accommodation" we're possible.

From the EEOC website:

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Disability Discrimination
Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability. Learn more about the Act at ADA at 25.
Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment).
It would seem that the onus would be in the employer to prove that the Hogan was sufficiently effective that it was a business necessity to employ it and that there was no reasonable accommodation they could make to offset whatever Hogan related issue they were rejecting applicants for. I don't think they could find a single statistician willing to say it was anything other than a crude and not terribly effective screen, especially when applied to an applicant group already possessing an FAA class one physical, an ATP, and a couple thousand hours of 121 time.

You have to understand, the law was rewritten precisely to overcome the issues that allowed UAL to prevail in UAL vs Sutton.
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