This unit pairs one ADA definition with the Uniform Guidelines' definitional section. Both reward knowing whose judgment and which words control.
Whose judgment on essential functions
Under 42 U.S.C. 12111, consideration is given to the employer's judgment as to what functions of a job are essential. Not the treating physician, whose judgment describes the individual's restrictions rather than the job; not co-workers; not a state workers' compensation board.
UGESP definitions
- Adverse impact (section 16B): a substantially different rate of selection in hiring, promotion, or other employment decision that works to the disadvantage of members of a race, sex, or ethnic group. It is rate-based, so it is not about intent or animus, and it is not measured against labor-market demographics.
- Selection rate (section 16R): the proportion of applicants or candidates who are hired, promoted, or otherwise selected. Not workforce representation, not openings divided by applicants, not one-year retention.
- Selection procedure (section 16Q): any measure, combination of measures, or procedure used as a basis for any employment decision, expressly including informal or casual interviews and unscored application forms, alongside tests, training programs, probationary periods, and physical, educational and work experience requirements. A vendor calling its conversation "just a chat" does not put it outside the guidelines.
Compliance and consequence
- Section 16C: use is in compliance if it has been validated in accord with the guidelines, or if such use does not result in adverse impact on any race, sex, or ethnic group, or in unusual circumstances if otherwise justified under federal law. Criterion-related validity is one recognised strategy, not a requirement, and there is no filing with the EEOC.
- Section 3(A): use of a selection procedure with adverse impact is considered discriminatory and inconsistent with the guidelines unless it has been validated in accordance with the guidelines or the provisions of section 6 are satisfied. There is no grace period for running validation studies, and the validation route always exists, so the use is never unlawful in all circumstances.
What to advise
A promotion test producing a rate well below four-fifths of the highest group's rate is generally regarded as evidence of adverse impact, so the procedure must be validated or section 6 satisfied, or its use is considered discriminatory. Do not raise the passing score, do not discard results and promote to match demographics, and do not rest on identical administration — uniform application does not answer an impact-based standard, and intent is irrelevant to it.