EO
Guidance Letter No. 3 EO
Guidance Letter No. 3
EQUAL OPPORTUNITY GUIDANCE LETTER NO. 3
MAY 21, 1993
TO: GOVERNORS, STATE EMPLOYMENT SECURITY AGENCY (SESA) ADMINISTRATORS, SESA EQUAL OPPORTUNITY OFFICERS
FROM: ANNABELLE T. LOCKHART
Director
SUBJECT: Testing, by State Employment Services, of Persons with Disabilities
First, what accommodations can be made in administering SATBs to individuals with disabilities?
Second, if an individual self-identifies as a person with a disability and is unable to take the test, can the Employment Service inform an employer, on whose behalf the test is given, that the person has a disability and ask that the individual be evaluated using other measures?
4. Policy. All State Employment Services are subject to Section 504 of the Rehabilitation Act of 1973, as amended. In addition, they are covered by Title I of the Americans with Disabilities Act of 1990(ADA), enforced by the Equal Employment Opportunity Commission (EEOC). Additionally, employers of 25 or more employees (15 or more after July 26, 1994) are subject to Title I of the ADA. State Employment Services also are subject to Title II of the ADA. For State Employment Services, both Title II of the ADA and section 504 are enforced by the Department of Labor's Directorate of Civil Rights (DCR). The requirements regarding tests under all of these laws are the same.
General guidance about testing individuals with disabilities is contained in Appendix A of 29 CFR part 32. Similar guidance is found in the EEOC regulations implementing Title I at 29 CFR part 1630 and the ADA Technical Assistance Manual published by EEOC. Sections 1630.10 and 1630.11 of the regulations and the Appendix discussions of those sections are particularly germane to the above questions. The Technical Assistance Manual discussions of job-related qualification standards (Section 4.4) and testing (Section 5.6) also provide helpful guidance on this issue.
Guidance on specific situations as they arise may be available from the Job Accommodation Network (JAN). JAN is an information and consulting service providing individualized accommodation solutions to inquiries about enabling people with disabilities to work. JAN information services are free. The telephone numbers for JAN are:
1-800-JAN-7234 (In U.S. outside West Virginia)
1-800-JAN-4698 (In West Virginia)
These are both voice and TDD numbers.
The issue of testing Employment Service applicants with disabilities is also generally discussed in the National Research Council report on Fairness in Employment Testing at pages 220-225. Within this context, our responses to your specific questions follow.
Question: What accommodations can be made in administering SATBs to individuals with disabilities?
Response: It is not possible to provide a definitive list of reasonable accommodations. Each situation must be treated on a case-by-case basis and in consultation with the individual. Whether a particular accommodation is appropriate is a fact specific determination, which turns on the specific functional limitation of the individual, the effectiveness of the particular accommodation, and consideration of the administrative and financial burden of providing the accommodation (29 CFR 1630.2(o) and (p)). Accommodations are not required if it can be proven that to do so would cause undue hardship. However, this is a high standard that must be based on the total assets of the SESA and must be clearly documented.
Available evidence indicates that some accommodations do not significantly influence test scores and should be provided if appropriate. Such accommodations would include physical access, more breaks, and small-group or private administration; administering the psychomotor tests to a person seated (as in a wheel chair); and special test administration (by signing or using written rather than oral instructions) for persons with hearing disabilities.
Appendix A of part 32 provides, in relevant part, that recipients should appropriately adjust or modify examinations so that the test results accurately reflect the applicant's skills, aptitude or whatever other factor the test purports to measure, rather than reflecting the applicants' impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).
If there are no accommodations in the method for test administration that would ensure that the abilities of an applicant with a disability are fairly evaluated by the test, then the applicant's abilities could be evaluated without testing (e.g., through an interview, or through education, license, or work experience requirements). See Section 1630.11 of the Title I regulations and accompanying Appendix discussion and Appendix A to part 32.
Question: If an individual self-identifies as a person with a disability and is unable to take the test, can the Employment Service inform an employer, on whose behalf the test is given, that the person has a disability and ask that the individual be evaluated using other measures.
Response: This question raises two issues: (1) whether the Employment Service should seek the consent of an employer prior to evaluating an applicant with a disability on a non-test basis and (2) if an applicant's disability prevents fair evaluation of his or her abilities through testing, should the employer be advised that the applicant did not take the test because of a disability?
In response to the first issue, the Employment Service must not condition evaluation of the abilities of an applicant with a disability through methods other than testing on the consent of the employer. Rather, the Employment Service must independently establish methods that will properly and fairly evaluate the abilities of applicants with disabilities. Thus, the Employment Service would be responsible for ensuring that any necessary reasonable accommodation is provided to applicants being screened for employment. If the appropriate accommodation for a disability would be to evaluate the applicant without testing, the Employment Service would be responsible for providing that accommodation regardless of whether the employer consents. If the employer using the Employment Service to screen its applicants for employment is covered by the ADA, the employer would be independently responsible for ensuring that reasonable accommodation is provided during the Employment Service applicant screening process. Accordingly, it would be inappropriate for the employer to decline to permit a needed accommodation.
In response to the second issue, Employment Services may not identify an applicant as a person with a disability during referral to the employer. Further, the Employment Service should establish procedures which will ensure that an applicant who is unable to take a test because of a disability will not be stigmatized because of his or her inability to be evaluated in the same manner as other applicants.
One approach might be to advise employers that tests will be used to evaluate the abilities of applicants where appropriate, but that there may be some individuals (e.g., some individuals with disabilities, persons with an outstanding work history or other credentials, or persons with limited literacy or facility in English) for whom testing is inappropriate or unnecessary. The abilities of these individuals will be evaluated in other fashions (e.g., work experience, educational background). Under this approach, stigmatizing nontest-takers could be avoided by declining to identify test-takers or their SATB scores when non-test-takers are in the referral pool. Other approaches to compliance are possible. The issue of section 504 and ADA compliance in testing and referral would be an appropriate topic of discussion between the employer and the Employment Service.
5. Inquiries. Inquiries concerning this guidance letter should be directed to Mr. Bud West, Chief, Division of Technical Assistance and Compliance Monitoring, DCR, (202) 219-7026, or Ms. Dani Fofanah, Senior Policy Advisor, DCR (202) 219-8927.
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