A good bit of federal anti-discrimination law must be considered in choosing and sequencing police officer hiring criteria. Some of that law was discussed in last month’s column, and some is discussed here. The rest will be summarized in the next several articles. For now, suffice to say that employers with 15 or more employees (including part time) must adhere to the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act, for starters.
Employers may also be subject to a variety of state-based civil rights laws that often apply to employers with fewer than 15 employees. Consultation with expert local counsel is advised. We proceed now with a discussion of certain police officer hiring criteria: written tests, medical screening and physical ability tests. The Written Test
A tremendous amount of energy and money has been spent by individual departments in the quest for the perfect entrance exam. If you have been diligent in your recruitment process, the significance of this phase of the hiring ordeal is radically reduced. The value of a written test as a predictor of the future performance of a police officer has long been the subject of debate anyway.
Traditionally, some large minority groups have performed relatively poorly on many of these tests, and because of our emphasis on them, we have missed opportunities to hire some very good people. Today, the legally viable entrance test may be little more than an assessment of the taker’s ability to read and write at required levels, and their ability to follow direction. We may need to accept that and intensify other efforts in selection.
Thousands of police agencies exist in this country, but we don’t need thousands of different entrance exams. Many departments have created or adopted bland, non-exotic written tests which have already passed legal muster. Find one that has been accepted in your state and use it.
Recruit the finest, let the test help put them in order, and then devote your best efforts to the rest of the selection process. Physical performance tests, psychological screening, background investigation, medical screening and, very importantly, human relations skills assessment are far better tools for predicting success than the written test ever was—as long as someone can read and write at required levels.
The ADA precludes prospective employers from conducting medical exams or making medical inquiries of an applicant until after a conditional offer of employment has been made. The only pre-conditional offer inquiries that are acceptable, though they might pre-sage medical problems, are straightforward questions concerning the applicant’s ability to perform essential job functions.
For example, this job requires that you be able to do “this.” Can you do “this”? These restrictions are intended to prevent subtle and not-so-subtle discrimination against individuals with disabilities by attempting to assure that disabilities are not the focus of the selection process until after it has been determined that the applicant is otherwise a successful candidate. Then, the curtain is opened on possible disqualifying disabilities, and subsequent considerations are conducted under very bright lights of legal and sociopolitical scrutiny.
If an applicant covered by the ADA is disqualified on the basis of a disability, the employer must be able to show that the candidate cannot perform all of the essential job functions, even with reasonable accommodations.
Remember, we cannot require that all successful candidates be healthy. The ADA protects people from employment discrimination because of their disabilities—even if their disability makes them remarkably unhealthy—if they can perform all essential job functions.
Other traditional thinking may need re-examination in light of current ADA principles—like whether or not one really needs two eyes to perform the essential police job functions, and whether one really needs two biological legs when one plus a darn good prosthesis seems to make that candidate very able. Applicants who need hearing aids to hear satisfactorily should be allowed to use them, especially because we allow incumbents to use them.
Speaking of incumbents, the worst functioning heart in your incumbent work force is apparently a good enough heart to do police work adequately—at least so it seems from the fact that you are sending it into prospective combat each day. There will likely come a negative (legal) judgment day regarding telling applicants that certain medical and physical standards represent essential job functions even though we have incumbents who are not held to those standards, and clearly would not meet them. Such illogic is probably not sustainable in the long term.
Physical Ability Tests
Physical ability tests bring down a great number of candidates. For that reason, the wise employer will run these tests before applying other hiring criteria that are expensive and time consuming. A physical ability test in which an applicant must perform actual or simulated job tasks is not a medical examination or inquiry under the ADA. It may be run “upfront.”
Again, we are not allowed to require that all new hires be healthy. The ADA protects some decidedly unhealthy people from discrimination on the basis of their disabilities, unless the candidate cannot perform the essential job functions. A candidate may be of questionable fitness and health yet be able to perform essential job functions. All that we can require, at least in the case of an applicant whose physical limitations are part of a covered disability, is that he or she be fit enough to do the job at minimum acceptable levels of safety and effectiveness.
Physical ability standards that are age- and gender-adjusted are, obviously and by definition, age- and gender-related rather than job-related—unless we have a job called “old man (or woman) police officer.” The fact that someone falls into the 50th percentile (or any particular percentile) of a matrix of normative physical fitness data does nothing to assure that such person can do a particular job.
So, for example, if someone is in pretty good shape for a 65-year-old woman, that does not tell us whether that person can or can’t perform the essential functions of the job of entry level police officer. Also, requiring men to meet higher standards than women just because they are men may easily be viewed as gender discrimination prohibited by the Civil Rights Act of 1964.
Plus, Section 106 of the Civil Rights Act of 1991 explicitly forbids gender “norming” on employment-related tests. Furthermore, to apply a physical standard to applicants that is never applied to incumbents may tend to invalidate that criterion.
Physical performance standards should involve specific activities which are clearly job-related and may be required of any police officer at any time. These are the essential job functions. Examples might include a dummy drag or the ability to handle normal police foot pursuit tasks like leaping small ditches and culverts, climbing over a small surmount obstacle, climbing stairs and the like.
The cutoff score on such a test would be the same for everyone, regardless of age or gender, because the tasks are the same for everyone. A surmount obstacle does not get smaller, nor does the need to apprehend a criminal shrink, just because an officer is old or because of the officer’s gender.
Standards that are not age- and gender-adjusted are extremely likely to have adverse impacts on women and people over 40. Therefore, the employer must be able to validate such standards—prove that they are so job-related as to constitute a business necessity. Details of validation science are beyond the scope of this article but can be obtained via e-mail request at email@example.com.
It is also important to know that criteria like push-ups, sit-ups, a 1.5-mile run, etc., can be legally validated, although they do not “look like” the job. This may be accomplished through a two-step validation process that first identifies a valid passing score on a valid job task simulation test and then identifies what performance on a standard physical fitness test (push-ups, etc.) accurately (and with sufficient scientific certainty) predicts the ability to perform the job task simulation tests at the acceptable level. The use of age and gender adjustments in passing scores completely invalidates this approach, as mentioned above.
Last month’s article examined the law of discrimination and reverse discrimination in hiring processes. This month, we discussed certain hiring criteria—written tests, medical screening and physical ability tests—with emphasis on potential pitfalls and recommendations regarding them. Next month, we will do the same with regard to psychological testing and personality inventories, screening tools for human relations and interpersonal communication skills and, very critically, background investigations. Then, we will move on to more key points of federal employment law.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of "The Law of Policing," which is available at LRIS.com. He can be reached directly at firstname.lastname@example.org
Kevin Lowry recently retired as a chief from the Nassau County, N.Y., Police Department. He is a qualified attorney, arbitrator and hearing officer in matters of personnel and employment. Lowry has held supervisory and management positions in patrol, investigations and administration. He can be reached at Kevin@CALLaCOP.com.