Target hiring discrimination complaint has been resolved by Target agreeing to a $2.8 million dollar settlement deal. The complaint involved several employment assessments used by Target in its hiring practices that the Equal Employment Opportunity Commission (EEOC) found to be discriminatory. One of these assessments, which was performed by psychologists, was determined by the EEOC to be a violation of the Americans with Disabilities Act (ADA).
Neither EEOC nor Target has disclosed exactly what this psychological assessment consisted of. However, the EEOC stated that the test was a “pre-employment medical examination,” which violated a provision of the ADA that prevents employers from subjecting applicants to medical examinations before they have received job offers.
Medical Questions and Examinations – What is Allowed and What is Not
The ADA states that its prohibition against discrimination “shall include medical examinations and inquiries.” It also states that, prior to employment, “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability, or as to the nature or severity of such disability.”
It should be noted that the ADA also has a provision stating that a covered entity may make pre-employment inquiries into an applicant’s ability to perform job-related functions. The EEOC’s finding of discrimination in this case suggests that a psychologist’s assessment of a prospective employee’s response to questioning is not considered an acceptable inquiry into his or her ability to perform job-related functions.
An employer may require a medical examination after a job offer has been made, and it can even make the offer conditional on the results of the examination. However, this is only possible if:
- All entering employees are subjected to such an examination, regardless of disability
- The results of such examination are only used in accordance with the ADA
- Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files, and is treated as a confidential medical record (There are several exceptions to this confidentiality, as there are some specific circumstances in which supervisors, managers, first aid and safety personnel, and government officials can be given access to information about employees’ health.)
Acceptable Questions
The EEOC has enforcement guidelines on pre-employment disability-related questions and medical examinations, and these guidelines specify certain types of questions than an employer is allowed to ask an applicant prior to a job offer. These include:
- Questions about an applicant’s ability to perform specific job functions – such as stating the physical requirements of the job, and asking if the applicant can satisfy these requirements
- Questions about an applicant’s non-medical qualifications
- Questions asking an applicant to describe or demonstrate how he or she would perform job tasks
Your Employment Assessments
If you run a business in California, and you are unsure if your employment procedures are in accordance with the EEOC’s requirements, you may wish to speak to an attorney. You can call or email the Santa Rosa office of the employment and labor law attorneys at Beck Law P.C., to schedule a consultation.