From the desk of Matthew McCord, M.S., CRC, Senior Consultant – Motor Team
If you have read some of the Equal Employment Opportunity Commission (EEOC) enforcement guidance documents in the past, then you likely have come across the phrase "job-related and consistent with business necessity." JAN sometimes gets questions about this phrase. It arises most often when an employer is questioning whether an employee is still qualified for the position that they are working in, or when an employer is determining if an individual is qualified for a job that they are applying for. These are critical employment situations, so it is important for an employer to understand what specifically this phrase means. So, let’s begin by discussing what the EEOC has said on this topic. In chapter 4 of the ADA Title I Technical Assistance Manual, it states:
If a qualification standard, test or other selection criterion operates to screen out an individual with a disability, or a class of such individuals on the basis of disability, it must be a legitimate measure or qualification for the specific job it is being used for. It is not enough that it measures qualifications for a general class of jobs...
The ADA does not require that a qualification standard or selection criterion apply only to the "essential functions" of a job. A "job-related" standard or selection criterion may evaluate or measure all functions of a job and employers may continue to select and hire people who can perform all of these functions. It is only when an individual's disability prevents or impedes performance of marginal job functions that the ADA requires the employer to evaluate this individual's qualifications solely on his/her ability to perform the essential functions of the job, with or without an accommodation...
2. Business Necessity...
If a test or other selection criterion excludes an individual with a disability because of the disability and does not relate to the essential functions of a job, it is not consistent with business necessity...
A standard may be job-related but not justified by business necessity, because it does not concern an essential function of a job...
Further, the ADA requires that even if a qualification standard or selection criterion is job-related and consistent with business necessity, it may not be used to exclude an individual with a disability if this individual could satisfy the legitimate standard or selection criterion with a reasonable accommodation.”
With this guidance in mind, let’s deconstruct the information into more manageable chunks and discuss what each part means.
To be Job-Related, it must be a Legitimate Measure or Qualification for the Specific Job
At first glance, this can seem straightforward. The selection criteria, or qualification standards, must be appropriately representative of the functions of the specific job that must be performed. But, for a variety of reasons, selection criteria will sometimes be used by employers that cover multiple jobs, and they will state that these criteria are necessary for all those jobs. This can be a precarious practice as the criteria used to determine if someone is qualified or not must be based on the specific needs of the job in question. Applying blanket requirements like this may not consider how similar jobs can have very different duties to be performed. Rather than applying requirements based on classes of similar jobs, it is best to review each job individually and apply only those requirements that are truly necessary for that position.
Job-Related Selection Criteria Can Apply to all Job Functions
When employers are looking to fill a job, they will look for a candidate who can meet all of the demands of that job. This includes both the essential and marginal functions of the job. However, if an individual has disability-related needs that would interfere with their ability to perform the position’s marginal functions, an employer would need to consider that individual’s ability to perform the essential functions only. Under the ADA, individuals with disabilities are considered qualified if they can perform the essential functions of a position either with or without accommodation. Outside of situations that would require accommodations, employers may review an individual’s ability to perform all functions of the job.
If it is not Related to Performing an Essential Job Function, then it may not be Consistent with Business Necessity
We have discussed how and when an employment requirement is considered job-related. But it is possible for something to be job-related, but not consistent with the needs of the business. For an employment standard to be consistent with business necessity, it must apply to the essential functions of the position in question. This means that if an individual with disability-related needs is potentially going to be excluded from a job because of a job-related qualification standard, the standard must be related to the performance of that job’s essential functions. If the standard is related to the individual’s ability to perform a marginal function of that position, then that employment requirement is not consistent with business necessity. It is also important to keep in mind that if it does apply to the ability to perform the job’s essential functions, under the ADA an individual is considered qualified for a job if they can perform the essential functions of the job either with or without accommodation. So, the employer would still be obligated to consider accommodations that would enable the individual to meet the qualification standard in question.
In situations where an employer is concerned that an individual with disability-related needs is not meeting the qualification standards of the position, those qualification standards must be job-related and consistent with business necessity. This means that the qualification standard must appropriately represent the requirements of the specific job in question and the disability-related needs must be interfering with the individual’s ability to perform the essential functions of that job. If this is the case, then the employer must consider whether this individual can be effectively accommodated to be able to perform those essential functions. This is because, under the ADA, an individual is considered qualified if they can perform a job’s essential functions either with or without the assistance of an accommodation.