EMPLOYMENT

1. (a) A person may not be denied employment, promotion or another term, condition or benefit of employment solely for refusing to take a test, submit to a process, or answer a question prohibited by this section.

2. (b) An employer may not make use of an employment test, device or other selection criterion that screens out or tends to screen out persons with a handicap or disability unless both of the following factors apply:

   1. (1) The test, device or other selection criterion is job-related for the position in question or a demonstrably related position.
   2. (2) Alternative job-related tests, devices or criteria that do not screen out or tend to screen out as many handicapped or disabled persons are not shown by the Commission or the applicant to be available.
3. (c) An employer shall select and administer tests concerning employment so as best to ensure that, when administered to an applicant or employe who has a handicap or disability that impairs sensory, manual or speaking skills, the test results accurately reflect the applicant’s or employe’s job skills, aptitude or whatever other factors the test purports to measure rather than reflecting the applicant’s or employe’s impaired sensory, manual or speaking skills, except where those skills are the factors that the test purports to measure.
4. (d) Except as provided in subsections (f) and (g), preemployment inquiries that are intended to reveal or that may have the tendency to reveal the existence of a present or recurring handicap or disability shall be limited to those necessary to determine whether the handicap or disability is job-related; however, an employe or applicant to whom an oral or written inquiry is directed shall be provided the opportunity to explain why the handicap or disability is nonjob-related, including what special efforts the employe or applicant makes or what reasonable accommodations can be made to render the handicap or disability nonjob-related.
5. (e) An employer may not deny reasonable requests from an applicant for assistance in completing the application process.

6. (f) When an employer is taking remedial action to correct the effects of past discrimination against or is taking voluntary action to overcome the effects of conditions that resulted in limited opportunities for handicapped or disabled persons, the employer may invite applicants for employment to indicate whether and to what extent they have a nonjob-related handicap or disability, provided that:

   1. (1) The employer states clearly on a written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts.
   2. (2) The employer states clearly that the information is being requested on a voluntary basis, that it will be kept confidential subject to the exceptions set forth in § 44.12 (relating to eliciting and disseminating information concerning an employe’s handicap or disability), and that refusal to provide it will not subject the applicant or employe to adverse treatment.

7. (g) Nothing in this chapter is deemed to preclude a bona fide medical examination; provided that all similarly situated employes or applicants are subject to the same examination without regard to handicap or disability.

   Comment

   This section is patterned after sections 84.13.14 of H.E.W.’s section 504 regulations. Subsection (a) is not intended to protect a person who acts in an untruthful, dishonest or deceptive manner in response to a preemployment process prohibited by this section. Rather, it protects the individual who refuses to submit to such a process. Subsections (b), (c) and (d) meet the objections of earlier commenters that the chapter did not sufficiently clarify that all preemployment selection criteria and screening processes must be job related.

   The final sentence of § 44.11(d) merely provides the opportunity in certain circumstances for the applicant to explain why a seemingly job related handicap or disability is in fact nonjob-related or what reasonable accommodations can be made to render it nonjob-related. It is not intended to create special privileges in the applicant to intrude upon the employer’s business operation. For example, the subsection does not mandate that a handicapped or disabled applicant be permitted to inspect a work site, or be made privy to special information in order to assess how his handicap or disability can be accommodated.