By: Loyd Willaford and Mathias Deeg
In Cook v. City of Philadelphia, the U.S. Court of Appeals for the Third Circuit held that Philadelphia’s required psychological exam for police officer applicants was valid and non-discriminatory, and that a failed exam with no further evidence could not be used as the basis for an employment discrimination claim under the Rehabilitation Act or the Americans with Disabilities Act.
Michael Cook, an applicant to be a Philadelphia police officer, had his conditional offer of employment rescinded after failing a state-mandated psychological examination. Pennsylvania law requires officers to be found “psychologically capable to exercise appropriate judgement or restraint in performing the duties of a police officer,” and verifies applicants through one-on-one screenings with licensed doctors. Through his exam, Cook was rated “poor” or “unacceptable” on a number of categories and was deemed psychologically unfit for service. Foregoing an opportunity to reapply for a position, Cook filed a complaint alleging employment discrimination under the Rehabilitation Act and the Americans with Disabilities Act.
Cook argued that he was discriminated against by the doctor conducting his examination, and that the subjective opinion of that doctor should not disqualify him for the position.
The city argued that the individual psychological evaluations were requirements set by the state, and that failing such an examination automatically disqualified an applicant from the job of police officer. Furthermore, it argued that Cook did “articulate any facts that would support a claim of bias in the… examination.”
The Court held that Cook was not qualified for the job and had not been discriminated against. Cook could not show that he was qualified for the job of Police officer and did not offer a reasonable accommodation with which he might otherwise qualify for the job. The psychological screening is a job-related test consistent with a business necessity (police officers must be psychologically sound to effectively carry out their duties). Because Cook could not show any evidence of bias within the test itself, the results and ensuing withdrawal of employment consideration were appropriate.
Furthermore, Cook was unable to show bias based on a disability, as he offered no proof of biased conduct and a negative result on a psychological exam was not a diagnosis of psychological disabilities. The Court ruled:
Cook was unsuitable to be a police officer; he was not diagnosed as having any particular psychological disease or disorder. ‘[A]n employer does not necessarily regard an employee as handicapped simply by finding the employee to be incapable of satisfying the singular demands of a particular job.’
This case illustrates an important distinction between two different ways of proving discrimination: disparate treatment versus disparate impact. In a disparate treatment case, the plaintiff alleges that he or she was treated worse than someone else not in a protected group, for example, a disabled person alleges she was not hired because of her disability. In a disparate impact case, the plaintiff alleges that a policy that appears neutral on its face, actually has an unfair impact on those in a particular group. For example, an employer has physical requirements for a job which are not actually necessary for the job and which are too difficult for disabled people to meet. These two types of claims require different kinds of proof.
In this case, Cook tried to conflate these two types of claims and provided no evidence to support either theory. Cook appeared to argue that the psychological testing was not necessary for the police job, despite the fact that there was state statute requiring such testing; this was the disparate impact argument. He offered no evidence to suggest that such screening was not a necessary, so to the extent he was arguing the disparate impact, his argument failed.
Cook also argued that the City failed to hire him becasue its testing suggested he had a disability.
As the Court pointed out, that is not what the testing showed; it merely suggested Cook was psychologically unfit for police work. Employers can employ legitimate screening tools, so long as they are related to the job. Psychological testing for positions of high stress, like police officers is permissible, provided it is not used to screen out applicants for reasons unrelated to the job requirements.
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