[IPAC-List] question for participants about PATs

Thu Mar 20 16:47:10 EDT 2014


Far be it from me to offer legal opinions. But, assuming that Dennis's insight applies to your two situations, compliance with state law is not likely to deter an EEOC investigation, nor would it deter the U.S. Department of Justice from filing suit against the state agencies if DOJ thought there were grounds to take action.
In the alternative, they may be looking to run what they consider to be a medical exam, which is why they seem interested only with ADA compliance and not with any specific jobs. If they're expecting to have the test administered by someone in a health or allied profession, that would suggest a medical exam.

You've piqued my curiosity.


>>> Dennis Doverspike <dennisdoverspike at gmail.com> 3/20/2014 4:19 PM >>>


I am just guessing because digging deeper would take more work than I am willing to do without compensation.

But the clue to the issue to me is your mention of the State Department of Transportation. That makes me wonder whether there are specific State Laws or certification standards with regard to transportation professionals, those are set out by statute, and so the RPF is just being issued in conformance with those laws.

I do find a trend of agencies and jurisdictions being more worried about dealing with state laws, statutes or certifications standards than with Federal Laws, when it comes to physical testing. Having said that, we are now starting to get into an area of legal issues beyond my ability to offer opinions.

Best regards


On Thu, Mar 20, 2014 at 3:43 PM, Gene Carmean <GCarmean at med-tox.com> wrote:

Hello All:

Within the last month I have reviewed two Requests for Proposals from public agencies. In both cases they were from state Departments of Transportation (Oregon and Colorado). These RFPs seem very strange to me and I am wondering if this is an emerging trend. I have one of the RFPs and will email it to anyone who wants it.

Both the RFPs ask for physical ability test(s) but no specific jobs are mentioned. It appears they wish to devise a test(s) for the entire agency.

The RFPs mention the ADA but ignore the Civil Rights Act of 1964. I have not seen a federal ADA case about physical ability testing. Perhaps one or more exists. Most of the cases I have seen are about gender discrimination. I know of one case in California under state law where the employee was disabled but that one was settled before trial. I wonder why there is such emphasis on the ADA but the Civil Rights Act is ignored? The Uniform Guidelines are never mentioned.

The qualifications to perform these services are usually limited to a nurse or a physical therapist. While I have not looked at the curriculum of nursing students, I have checked ten graduate and undergraduate schools of physical therapy. In that search I found not a single course on employment law, statistics, industrial psychology, educational psychology, exercise science, or any other relevant field. I wonder why therapists and nurses are included but those in the relevant fields are excluded?

Most troubling of all is that the Colorado RFP specifies that the old DOT job analysis method from the 1930s be utilized, even though the National Academy of Sciences rejected this as a viable job analysis methodology more than 34 years ago. Maybe I am missing something, but this seems odd to me.

I was looking for the group for some comments on this. I had never seen RFPs as strange as these, but to see two within a month is a little unnerving.

Gene Carmean
MED-TOX Health Services
3350 Shelby Street, Ste. 200
Ontario, California 91764

909 944 3181 ( tel:909%20944%203181 ) Tel


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Dennis Doverspike, PhD., ABPP
Licensed Psychologist, #3539 (OHIO)
Independent Consultant
Professor of Psychology, University of Akron
dennisdoverspike at gmail.com

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