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  1. #1
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    Default Hiring Preference Points for Applicants With a Disability

    My question involves labor and employment law for the state of: Arizona

    I have questions involving a job application, interview, and preference points for a disability.

    The employer (local government agency) utilizes an online application process and which I used to apply for job. One of the questions on the application asks if the applicant is disabled to which I answered "YES" (I have a disability covered by the ADA). My application was processed and I received an email from the employer indicating I had met the minimum qualifications for the job applied for. I was then contacted by the department for an oral interview. Upon arrival for the interview the person heading the interview panel indicated that two of the four panel members were absent and they would go ahead with just the two members.

    There were 5 or more candidates that interviewed for the position. Unfortunately I was not the one selected.

    I have since found out that I was the only candidate interviewed by only two of the four panel members. All other candidates were interviewed by the same two panel members that interviewed me plus an additional panel member. The fourth panel member did not participate in the process. The agencies hiring policy specifically states "When a oral interview is used, the process shall be conducted and applicants rated, by a panel of three (3) or more impartial individuals". This seems a bit unfair that I was not given the same opportunity as the other candidates to interview before all three panel members.

    State law (ARS 38-492) requires giving preference points to individuals with disabilities. The additional 5 preference points may or may not have made the difference in whether I would have been selected as I do not know the final tally. I have reason to believe that I was not given preference points. I am currently in the process of finding out if this is true or not.

    Some additional info. The person heading the interview panel knows me personally and also has known that I have a disability.

    IF it's determined that I was not given the preference points could this be cause for discrimination? What recourse if any do I have? Can the issue with not using 3 panel members strengthen my position?

  2. #2
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    Default Re: Hiring Preference Points for Applicants With a Disability

    Quote Quoting minersrule
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    This seems a bit unfair that I was not given the same opportunity as the other candidates to interview before all three panel members.
    Did they (or you) bring up the possibility of rescheduling?
    Quote Quoting minersrule
    I have reason to believe that I was not given preference points.
    What reason?
    Quote Quoting minersrule
    If it's determined that I was not given the preference points could this be cause for discrimination?
    It would be cause to suspect discrimination, but it could also represent a mistake. If it even happened.

  3. #3
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    Default Re: Hiring Preference Points for Applicants With a Disability

    Quote Quoting Mr. Knowitall
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    Did they (or you) bring up the possibility of rescheduling?

    What reason?

    It would be cause to suspect discrimination, but it could also represent a mistake. If it even happened.
    Yes, I immediately indicated that it would be ok to reschedule to which the head person replied "no, we'll just go ahead without them".

    I know how this person operates, does not do well with following rules and can be quite unethical at times. Regardless, I understand this gives no credence to a case. I will find out for sure whether I was given the preference points or not and also if I would have ranked first. I'll report back as son as I hear something.

    As for it being a "mistake", am I correct in assuming there is no recourse? Maybe it goes something like this: "Sorry we didn't follow the law, it was a simple mistake. We have no more job openings. Keep checking our website for future announcements"

  4. #4
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    Default Re: Hiring Preference Points for Applicants With a Disability

    Quote Quoting minersrule
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    My question involves labor and employment law for the state of: Arizona
    IF it's determined that I was not given the preference points could this be cause for discrimination?
    If you were not given preference points then the state may have violated its civil service laws. However, it would not by itself be a violation of the ADA as nothing in the ADA requires any employer to give preference to disabled applicants. It simply prohibits discrimination against the applicant because of the disability. There might be illegal discrimination if the agency intentionally failed to give you the points because of some protected characteristic, but there is nothing in your post that suggests this is what happened.

  5. #5
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    Default Re: Hiring Preference Points for Applicants With a Disability

    I don't know the civil service rules of the agency you applied with, but generally speaking, if it is determined someone has not been awarded points they are due, those points are then added to their score and their position on the eligible (hiring) list is adjusted accordingly.

    However, that may not mean much. While applicants are usually hired based on the order of their position in the list (highest first, next highest second, etc.) most civil service agencies have something called the Rule of Three, which allows them to fill a vacancy taking anyone from the top three scores on the list for any reason or for no reason in particular. (Some have a Rule of Five, others a Rule of 10 - your mileage will vary from agency to agency). So even if you were #1 on the list, it does not ensure or guarantee you would have been hired as they would have been entitled to select others with lower scores if they elected to do so.

  6. #6
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    Default Re: Hiring Preference Points for Applicants With a Disability

    I was able to confirm that there were no preference points given. This came directly from a representative of the HR department. In fact the person I spoke to acknowledged they do not give preference points to anyone. I showed them the section of the merit rules that specifically states that preference points are to be given per state law. They responded that the policies are old and that they are updating them. They asked if I was a veteran and stated the law is unclear but they did not think the law applies to handicapped individuals unless if a veteran as well. They then indicated they don't have a system in place to give preference points. This person did not have all the answers to my questions but said they would speak to the head HR person (they were out of the office) who would likely contact me to discuss my concerns.

    I feel the law is pretty clear in who it applies to. In fact I did some searching of other municipalities within the state and have found that many have a system in place to authorize preference points. Here are a few links (pdf forms): State of Arizona , Maricopa County . In both instances a disability/handicap is acknowledged as meeting the requirements of the law without requiring veteran status as well.

    Below is the article in its entirety.

    Article 7 - Civil Service Preference for Veterans

    38-491. Eligibility; age limit

    A. This state, or any political subdivision of this state that employs personnel of any branch of its service under a merit system, civil service system or other system of employment on the basis of merit, by whatever name known, and whether pursuant to law, ordinance, rule, regulation or otherwise, shall provide that a veteran of the armed forces of the United States as defined by title 37, chapter 1, section 101, United States Code, separated from active duty under honorable conditions, is eligible to apply for and receive employment under such a merit system regardless of age, if otherwise qualified, subject only to the requirement that the veteran is below the regular retirement age at the time of entering the employment, if a retirement age is prescribed.

    B. Any political subdivision of this state that employs personnel of any branch of its service under a merit system, civil service system or other system of employment on the basis of merit, by whatever name known, and whether pursuant to law, ordinance, rule, regulation or otherwise, shall provide that any veteran who is entitled under 10 United States Code chapter 1223 to retired pay for non-regular service or, but for age, would be entitled under that chapter to retired pay for non-regular service is eligible to apply for and receive employment under such a merit system regardless of age, if otherwise qualified, subject only to the requirement that the veteran is below the regular retirement age at the time of entering the employment, if a retirement age is prescribed.

    38-492. Preferences

    A. A veteran of the armed forces of the United States who is separated from the armed forces under honorable conditions following more than six months of active duty and who takes an examination for employment by this state or any political subdivision of this state under a merit system of employment as provided by section 38-491, in the determination of the veteran's final rating on the examination, shall be given a preference of five points over persons other than veterans. The preference shall be added to the grade earned by the veteran, but only if the veteran earns a passing grade without preference. Any veteran who is entitled under 10 United States Code chapter 1223 to retired pay for non-regular service or, but for age, would be entitled under that chapter to retired pay for non-regular service and who takes an examination for employment by any political subdivision of this state under a merit system of employment as provided by section 38-491, in the determination of the veteran's final rating on the examination, shall be given a preference of five points over persons other than veterans. The preference shall be added to the grade earned by the veteran, but only if the veteran earns a passing grade without preference.

    B. A person with a disability who takes an examination for employment by this state or any political subdivision of this state under a merit system of employment, in the determination of the person's with a disability final rating on such examination, shall be given a preference of five points. The preference shall be added to the grade earned by the person with a disability but only if such person earns a passing grade without preference. For the purposes of this subsection, "person with a disability" means an individual who has a physical or mental impairment that substantially limits one or more major life activities of the individual or who has a record of such an impairment or is regarded as having such an impairment.

    C. A person qualified for a preference pursuant to subsections A and B of this section shall be given a ten point preference.

    D. A spouse or surviving spouse of any of the following, otherwise qualified pursuant to subsection A of this section, shall be given a five point preference as if the spouse or surviving spouse were an eligible veteran pursuant to subsection A of this section:

    1. Any veteran who died of a service-connected disability.

    2. Any member of the armed forces who is serving on active duty and who, at the time of application, is listed by the secretary of defense of the United States in any of the following categories for not less than ninety days:

    (a) Missing in action.

    (b) Captured in the line of duty by a hostile force.

    (c) Forcibly detained or interned in the line of duty by a foreign government or power.

    3. A person who has a total, permanent disability resulting from a service-connected disability or any person who died while the disability was in existence.

    E. An honorably separated veteran who served on active duty in the armed forces at any time and who has a service-connected disability or is receiving compensation or disability retirement benefits under laws administered by the United States department of veterans affairs, army, navy, air force, coast guard or United States public health service shall be given a ten point preference pursuant to this section.

    F. If a person is eligible for a preference pursuant to this section and the person applies for employment with this state or any political subdivision of this state under a merit system of employment as provided by section 38-491 in which applicants are assessed and evaluated but scores are not given, preference shall be given by granting applicable preference codes to qualified applicants.

    G. No person eligible for a preference pursuant to this section shall be allowed more than a ten point preference.

    H. If a department, division or agency of this state or any political subdivision of this state is operated under a merit system prescribed by the federal government or a department, division or agency of the federal government, the provisions of that system, including preferences, prevail.

    38-493 . Effect of article

    The provisions of this article shall be binding on the state and on a county, city, town or other political subdivision which employs personnel of any or all branches of its service under a merit system of employment as provided by section 38-491, regardless of any provision of the law, ordinance, rule, regulation or other enactment providing for such merit system.

    38-494. Violations; classification

    A. A person violating any provision of this article is guilty of a class 2 misdemeanor.

    B. An officer or person charged with the administration of a civil service or merit system of employment of the state or a county, city, town or other political subdivision who knowingly refuses or fails to observe any provision of this article in the selection of a public employee, or in grading the examination papers of an applicant for employment as provided in section 38-492, is guilty of a class 3 misdemeanor.


    Any opinions on whether this law may apply to a person with a disability without regard to veteran status?

  7. #7
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    Default Re: Hiring Preference Points for Applicants With a Disability

    As I read the statute, if you qualify under subsection 38-492(B), you qualify for a five point preference; if you qualify under both subsections (A) and (B) you qualify for a ten point preference.
    Quote Quoting ARS Sec. 38-492(A)-(C). PReferences
    A. A veteran of the armed forces of the United States who is separated from the armed forces under honorable conditions following more than six months of active duty and who takes an examination for employment by this state or any political subdivision of this state under a merit system of employment as provided by section 38-491, in the determination of the veteran's final rating on the examination, shall be given a preference of five points over persons other than veterans. The preference shall be added to the grade earned by the veteran, but only if the veteran earns a passing grade without preference. Any veteran who is entitled under 10 United States Code chapter 1223 to retired pay for non-regular service or, but for age, would be entitled under that chapter to retired pay for non-regular service and who takes an examination for employment by any political subdivision of this state under a merit system of employment as provided by section 38-491, in the determination of the veteran's final rating on the examination, shall be given a preference of five points over persons other than veterans. The preference shall be added to the grade earned by the veteran, but only if the veteran earns a passing grade without preference.

    B. A person with a disability who takes an examination for employment by this state or any political subdivision of this state under a merit system of employment, in the determination of the person's with a disability final rating on such examination, shall be given a preference of five points. The preference shall be added to the grade earned by the person with a disability but only if such person earns a passing grade without preference. For the purposes of this subsection, "person with a disability" means an individual who has a physical or mental impairment that substantially limits one or more major life activities of the individual or who has a record of such an impairment or is regarded as having such an impairment.

    C. A person qualified for a preference pursuant to subsections A and B of this section shall be given a ten point preference....

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