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Old 08-12-2018, 12:43 PM   #1  
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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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Old 08-12-2018, 12:53 PM   #2  
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Step one: proving you weren’t hired due to failing the Hogan, MMPI, etc testing. Big hurdle.

GF
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Old 08-12-2018, 01:11 PM   #3  
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Step one: proving you weren’t hired due to failing the Hogan, MMPI, etc testing. Big hurdle.

GF
Absolutely true. But a lawsuit alleging that to be the case opens the other side up to legal discovery where - under oath - they must then tell exactly how those decisions are made. And you also have the res ipsa loquitor issue.

If you aren't using it to make a discrimination, why are you using it at all?

You think the chief of HR really wants to tap dance around that one under oath??
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Old 08-12-2018, 01:26 PM   #4  
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Absolutely true.
On reflection, I'm not sure it IS true. If you can establish that they violated the ADA BY TESTING YOU I believe the burden of proof shifts and THEY must then prove that the illegal testing DID NOT keep you from getting hired.
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Old 08-12-2018, 04:17 PM   #5  
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Not a chance.

A psychological condition / impairment would be covered by the ADA.

But the airlines are not testing for that, and even if they found such a condition it would almost certainly invalidate your medical anyway. They are allowed to verify that you meet 1C standards, they just cannot apply their own, higher, medical standards any longer.

What they are testing for is personality factors, to determine your suitability for their job, culture, organization and that is perfectly legal. I happen to think it's BS that they're allowed to do that, because it imprecisely excludes too many folks who would be just fine. They could make a much better determination at a face-to-face interview, but of course that's expensive.

But not being a good "fit" for their culture is not a disability.
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Old 08-12-2018, 05:06 PM   #6  
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But not being a good "fit" for their culture is not a disability.
Ah, but read the fine print. The law does not REQUIRE you to actually HAVE a disability to come under the law's protection, they require only that the employer PERCEIVE what you have as a disability.

And if they are allowing the testing to influence their hiring decisions, it is fairly apparent that they believe that certain test results constitute a disability.

The original Supreme Court case with UAL vs Sutton - in which UAL won - stated that the Sutton sisters were not disabled and could therefore not sue under the ADA despite their uncorrected visual acuity beyond United's standards because they indeed had valid FAA medical exams. Subsequently the ADA was specifically amended to address the issue of candidates who were not truly disabled but were perceived by employers to be disabled and discriminated against as an applicant because of that perception.
The amended law required the employer to show a business necessity for such testing. And after that amendment, UAL requiring visual acuity greater than demanded by the Federal Air Surgeon's office was quickly eliminated.

Again, not a lawyer, but I could foresee an expensive class action suit coming. If I were a company doing such testing I'd want to have real good proof of a business necessity to do such testing. Also a reason to tell the judge why I have a business necessity for this while my competitors - who are not doing similar testing - do not.
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Old 08-12-2018, 05:25 PM   #7  
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That’s an awful lot of research and thought for somebody simply playing devil’s advocate...
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Old 08-12-2018, 05:43 PM   #8  
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Default Amendments to revise after Sutton vs UAL

https://en.m.wikipedia.org/wiki/ADA_...ts_Act_of_2008
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Old 08-12-2018, 06:43 PM   #9  
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That’s an awful lot of research and thought for somebody simply playing devil’s advocate...
Well, it could be an issue in my future. I know it has been for some of the guys I've flown with. And in the era of google, research is fairly easy. And yeah, frankly, if someone else was hurt by this and wanted to go to court over it, that certainly wouldn't hurt my feelings - especially if they won and the testing were eliminated before I got to that point.

Like Rickair7777, I am unconvinced that this testing is anything more than BS that unfairly penalizes some applicants without truly benefiting those who employ it.

That rationale enough to do a half hour's browsing on the net on a layover?
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Old 08-12-2018, 07:30 PM   #10  
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Ah, but read the fine print. The law does not REQUIRE you to actually HAVE a disability to come under the law's protection, they require only that the employer PERCEIVE what you have as a disability.

And if they are allowing the testing to influence their hiring decisions, it is fairly apparent that they believe that certain test results constitute a disability.
I'm sure they would argue you have no disability at all, 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).

I think it would take a very large paradigm shift to ban personality analysis in hiring because that actually also occurs in regular interviews.

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.
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