B-PAD: Behavioral Video Testing

Compliance Issues: ADA and the ?Civil Rights Act of 1991

The Americans with Disabilities Act of 1990

The ADA is a wide-ranging federal act that prohibits discrimination against qualified individuals with disabilities in employment as well as other areas of social and community life. Users of B-PAD should be certain that they are administering the video test in a way that complies with this law and the implementation regulations pub?lished by the Equal Employment Opportunity Commission (EEOC). The B-PAD group is not liable for a userÕs discriminatory use of b-pad. For example, if b-pad scores are to be used to exclude candidates on the basis of their video test performance, then all applicants from that applicant pool must be given the test; it cannot be given merely to certain applicants who may appear to lack certain abilities.
Users can be confident, however, that B-PAD itself is a nondiscriminatory assessment instrument: it does not screen or tend to screen individuals with a disability, or a class of individuals with disabilities, on the basis of disability. Rather, B-PAD is a test of an applicantÕs ability to perform certain essential job functions. The EEOC regulations related to ADA's Title I (employment) regulations state, in part: "A covered entity may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions" (§1630.14). In addition, §1630.7 states, in relevant part, "It is unlawful for a covered entity to use standards, criteria, or methods of administration, which are not job-related and consistent with business necessity, and . . . [t]hat have the effect of discriminating on the basis of disability."
B-PAD utilizes behavioral tests of essential job functions and uses scoring criteria that are job-related and consistent with business necessity, and it does not inquire as to whether an applicant is an individual with a disability or as to the nature or severity of such disability (see EEOC regulations ¤§1630.13). Thus, B-PAD may be administered prior to the conditional job offer and the results of the test may be used as selection or exclusionary criteria.

The Civil Rights Act of 1991

As with ADA regulations, B-PAD is compatible with the Civil Rights Act of 1991 (CRA) but the user is responsible for ensuring that the test is used in a manner consistent with the Act. Technical assistance should be sought by the user, through its human resource personnel or legal counsel, if the user intends to utilize B-PAD in any way other than that described in the Manual of Administration & Scoring.
     The CRA states that an unlawful employment practice based on disparate impact is established "only" if: [A] complaining party demonstrates that a respondent [employer] uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin and the respondent fails to demon?strate that the challenged practice is job related for the position in question and consis?tent with business necessity. (42 U.S.C. §2000e-2 (k) (1) (A) (i)).
     The Act's formulation of the employerÕs burden (i.e., "to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity") is the same one that appears in the ADA (42 U.S.C. §12112 (b) (6)). The Act does not define "job related" or "business necessity." It should be a fairly simple task to demonstrate the job-relatedness of B-PAD in the event that an applicant challenges an employerÕs use of the video test as discriminatory. B-PAD clearly has a "manifest relationship to the employment in question" (c.f. Griggs v. Duke Power Company, 401 U.S. 424, 91 S. Ct. 849 (1971)). With respect to the issue of "business necessity," the U.S. Supreme Court has held that, for a practice to be considered consistent with business necessity, it must "significantly serve the legitimate employment goals" of the employer (c.f. New York Transit Authority v. Beazer, 440 U.S. 568, 99 S. Ct. 1355 (1979)). Further, Justice O'Connor indicated flexibility in the standard: In the context of subjective or discretionary employment decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a 'manifest relationship to the employment in question.'
     It is self-evident that many jobs, for example those involving managerial responsibilities, require personal qualities that have never been considered amenable to standardized testing. In evaluating claims that discretionary employment practices are insufficiently related to legitimate business purposes, it must be borne in mind that '[c]ourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.' (Watson v. Fort Worth Bank and Trust, 108 S. Ct. 2777 (1988)).
     Thus, the central issue appears to be whether a selection practice has a "manifest relationship to the employment in questionÓ and whether the practice serves the Òlegitimate business purposes" of the employer. B-PAD video tests are designed to meet both standards.

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