Hawaii Administrative Rules › Title 12 - DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS › Chapter 46 - PROCEDURE ON COMPLAINTS › Subchapter 9 - DISABILITY DISCRIMINATION › Section 12-46-188 - Qualification standards, tests, and other selection criteria

Current through June, 2024
(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).