Section 12-46-188 - Qualification standards, tests, and other selection criteria(a) It is unlawful for an employer or other covered entity to use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out a person with a disability or a class of persons with disabilities unless the employer or other covered entity justifies the need for the standard, test, or selection criterion.(b) Standards, tests, or selection criteria that screen out a person with a disability or a class of persons with disabilities based upon specified physical and mental impairments, medical conditions, or disabilities must be shown to be bona fide occupational qualifications. Example:
A qualification standard which excludes all persons who have back impairments would not be considered a bona fide occupational qualification unless the employer can establish that all or substantially all persons with back impairments cannot perform the essential job functions or pose a direct threat to self or others, with or without reasonable accommodation, and the essence of the business would be undermined without the standard.
(c) Other standards, tests, or selection criteria, not based upon specified physical or mental impairments, medical conditions, or disabilities, that screen out a person with a disability or a class of persons with disabilities must be shown to be job-related for the position in question and consistent with business necessity. Example:
A qualification standard which excludes persons who cannot lift certain weights would not be considered job-related and consistent with business necessity unless the employer can establish that the lifting requirement was an essential job function and there is no reasonable accommodation available.
(d) It is unlawful for an employer or other covered entity to discriminate against a person with a disability for reasons related to safety unless the person poses a direct threat to self or others. The determination that a person with a disability poses a "direct threat" shall be based on an individualized assessment of the person's present ability to safely perform the essential functions of the job, the person's past and current job history, and reasonable medical judgment that relies on the current medical knowledge or the best available objective or scientific evidence, not speculation, considering the factors defined in "direct threat". The individualized assessment made by the employer or covered entity shall identify and document the aspect of the disability and specific risk of harm that would pose the direct threat to self or others. If a person poses a direct threat, the employer or other covered entity must try to eliminate or reduce the threat to an acceptable level through provision of a reasonable accommodation.(e) It is unlawful for an employer or other covered entity to use qualification standards, tests, or selection criteria to exclude a person with a disability or a class of persons with disabilities because the particular position is part of a line of progression to which persons in the particular position are expected to advance even though the qualification standard can be justified for some of the positions in the line unless the standard, test, or criterion can be justified for the particular position. The justification for the qualification standard, test, or selection criterion shall be determined according to subsection (b), (c), or (d). Example:
A deaf person cannot be denied an entry level position because the person to be hired is expected to progress to higher positions with qualification standards which may exclude the deaf. Even though the exclusion of the deaf for any higher position can be shown to be a bona fide occupational qualification, the employer must also establish that excluding deaf persons in the entry level position is a bona fide occupational qualification.
(f) It is unlawful for an employer or other covered entity to fail to select or administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).[Eff 8/18/94] (Auth: HRS § 368-3) (Imp: HRS §§ 378-1, 378-2)