D. Applicant Screening

Screening takes place before job applicants are formally interviewed. Proper screening procedure begins with the development of an accurate, detailed job description so that applicants know the type of job that is being offered. In addition, candidates should be requested to complete a formal application form which contains general inform- ation, the candidate's educational background, work experience, references, and other pertinent information.

Job Descriptions

A preliminary job description for an established position should be reviewed by several persons, including a supervisor. The description must be written in a precise manner, using care to select words which convey specifically the meaning intended. The format of the description should include the job title and name of agency or unit, a job summary, and precise description of the job's physical and mental qualifications. The purpose is to explain directly what the job involves and what is expected to be done.

Disabled Workers

The need for a precise job description has become even more impor- tant as a result of the enactment of the Americans With Disabilities Act of 1990. The ADA prohibits discrimination against a qualified individual based on his/her disability with regard to recruitment and job application procedures as well as hiring policies. The law demands several rules be followed to assure a fit between job criteria and an applicant's actual ability to do the job:

1. Persons with disabilities are not to be disqualified because of their inability to perform nonessential or marginal functions of the job;

2. Any selection criterion that eliminates or tends to screen out must be job-related and consistent with business necessity; and

3. Reasonable accommodation to assist persons with disabilities to meet legitimate criteria must be provided.

Written job descriptions defining job duties and responsibilities must be carefully reviewed before insertion in advertising or use when interviewing applicants. This is to ensure that qualified individuals capable of performing the job are able to participate in the inter- viewing process. Employers cannot deny access to, segregate, or classify applicants in a way that adversely impacts the opportunities or status of the applicant because of disability.

Counsel Comment #7: Job descriptions must now be carefully reviewed because this is the first place the Equal Employment Opportunity Commission (EEOC} will look to determine whether handicap discrimination in violation of the ADA has taken place. When in doubt, include all essential job functions in the description to demonstrate that certain jobs are incapable of being performed adequately by disabled workers and that these criteria were established before the interviewing process took place.

TIP: The act also makes a distinction between an essential job function and a minimal job function which employers must identify in a job description. If you describe essential job functions which the plaintiff could not perform, your case will be stronger, whereas including only minimal job functions in the description weakens your case. For example, if you fail to note the essential functions of a particular job, such as heavy lifting as well as typing and telephone answering, you may have to hire a wheelchair-bound applicant who desires the job.

Under ADA, the importance of complete and accurate job descriptions cannot be overstated; properly written job descriptions prepared before job applicants are interviewed can be used as evidence of essential job functions and what the job entails. Employers who draft job descriptions that are current and accurate and which include all essential job functions can defeat a charge in discrimination lawsuits that such descriptions were tools of your own stereotypical thinking and consequent discrimination.

Summary Of ADA Rules To Remember During Hiring

1. Avoid disability-related questions in interviews.

   Note: There is an exception for companies which are federal government contractors. Under the Rehabilitation Act of l973, those companies are required to give applicants an opportunity to provide information about their disability but such facts cannot be used against the applicant in a hiring decision.

2. Never inquire what kind of accommodation the person needs in order to perform the job properly if hired;

3. Only request a medical exam after hiring and be sure it is made a condition of employment for all entering employees in that position;

4. Asking questions about the person's ability to perform specific job-related tasks or the job's requirements is legal;

5. Never keep written notes on observations about an applicant's disabilities since they can serve as a "smoking gun" against your company in the event of a lawsuit. If information on accommodations has been obtained by an applicant tracking system or notes in a personnel file, be sure that such information is not used to discriminate against the individual regarding hiring or future job opportunities. Discuss access to and future use of such information. Develop written policies to minimize claims that your company unlawfully acquired and used such information to that person's detriment.

The Philadelphia law firm of Blank, Rome, Comisky & McCauley in the June 1, l992 issue of Management Policies and Personnel Law news- letter, suggests the following excellent steps to comply with the ADA:

• Develop job descriptions in order to determine if an individual is "qualified."
• Examine employment applications to make sure that language is non-discriminatory.
• Examine employment tests and other selection criteria to make sure that those with disabilities are not screened out.
• Examine pre-employment drug testing procedures to make sure that they do not eliminate applicants because of prescription drugs taken for a medical reason.
• Reevaluate medical exam procedures so that exams are performed only after an offer of employment is made and confidentiality of examination results is maintained.
• Evaluate your workforce in order to accommodate those who have identified themselves as disabled.
• Train the workforce to deal with disabled co-workers.
• Reconsider your safety programs to include the disabled.
• Reconsider and revise personnel policies to make them more neutral, as well as fair to the company. For example, the ADA doesn't entitle those with disabilities to more paid leave than other employees.
• Prepare and post ADA notices throughout your company.
• Develop contacts among organizations for the disabled.
• Prepare reasonable accommodation options.
• Prepare both work and other areas such as rest rooms and lunchrooms to accommodate the disabled.
• Review performance appraisals to be sure they are neutral, and that they allow for documenting all negative as well as positive incidents.
• Consider a peer review panel to give feedback on employment practices and decisions.
• Document all efforts to accommodate applicants and employees who are disabled.
• Review contracts with employment agencies, unions, etc., and review all insurance plans to be sure they are non-discriminatory.

Enforceability Of Job Descriptions

Can a disgruntled ex-employee or employee compel companies to live up to job descriptions via lawsuits? Ordinarily, a company is free to change a person's duties and responsibilities after a hiring. Problems arise, however, when job descriptions and corresponding benefits are deliberately misstated to induce a worker to accept a position; they then become similar to misleading job opportunity ads and can become the subject of damage claims.

Counsel Comment #8: To avoid liability in this area, your company should indicate in a handbook or personnel manual, employment application, contract or in the job description itself, that the duties and responsibilities of the job are subject to change without notice.