Legal Issues in Certification

The following paper was presented at the CESB 2000 Certification Symposium held February 8, 2000 in Alexandria, Virginia. 


Section 501(c)(6)

The Internal Revenue Service has acknowledged that certification programs are entirely consistent with Section 501(c)(6) tax exempt status because they are designed to promote either an industry or the members of an industry or a profession. Such promotion can be either through improving the employment prospects of those who have become certified, or by improving the profession or industry as a whole by raising the standards therein.

Section 501(c)(3)

The IRS has taken a harder line, however, with respect to Section 501(c)(3) organizations that wish to operate a certification program. The official view of the IRS is that, as stated above, most certification programs are primarily designed to benefit an industry or a profession or the members thereof, and therefore the IRS does not view these programs as serving any kind of “public” purpose consistent with Section 501(c)(3) status. This is not to say that it is impossible for an association to demonstrate some benefit (e.g., improvement of health, safety, etc.) to society and, further, such is the primary benefit and focus of the program, not the professional development of those who have become certified. But clearly the burden will be on the association.

It is also possible for a certification program to be undertaken consistent with Section 501(c)(3) if the association shows that it is “relieving the burdens of government” through operation of the program. The association would have to show that the federal government, or a state or local government, has demonstrated a clear interest and desire to have a certification program of the kind that the association is operating, and that if the association did not operate the program, the government would have to do so. The evidence that the association would need to produce would perhaps be in the nature of governmental regulations, hearings, statutes, etc. It could not be simply a random or general interest expressed by certain government employees.

If a Section 501(c)(3) organization operates a certification program that does not fit within Section 501(c)(3), then any net income from the program would be considered unrelated income, and therefore taxable. One way to avoid this result would be to create a section 501(c)(6) subsidiary.




Certification designations (e.g., “Certified _____________”; “C _ _”)

can be trademarked under federal law. A “certification mark” is defined as “any word, name, symbol, or device, or any combination thereof certify...quality, accuracy, or other characteristics of such person's goods or services.” In most association programs, of course, certification marks certify that the performer of services has met certain standards or criteria.


Certification materials, including examinations, are eligible for copyright registration and protection. Further, the U.S. Copyright Office has developed a procedure that virtually eliminates the privacy and security concerns that a certifying organization may have about the customary requirement that a copy of any work to be copyrighted must be deposited with the Copyright Office.



Association certification programs can be vulnerable to attack on antitrust grounds. There are two components to such an antitrust argument.

First, a plaintiff must demonstrate that the certification program has significant economic importance such that the failure to become certified could negatively affect an individual from an economic or financial standpoint. This can be a difficult burden to bear. The kinds of harm could include, for example, inability to advance in one's career, damaged compensation potential, inability to attract customers, etc.

The second component of the antitrust attack is that the certification program is somehow deficient, e.g., it requires knowledge or ability in areas that are not relevant to practice of the profession or employment in the industry, or it does not adequately test relevant knowledge or skills.

In order to avoid or defend against charges that a certification program is unreasonable in some respect, most associations undertake formal validation of their programs. In fact, failure to do so can be a basis for a legal challenge—again typically on antitrust grounds. In addition, associations should be generally prepared to defend their programs not only in terms of validation, but also in terms of all aspects of preparation, including personnel that were involved in the preparation, source of questions, etc. If a certification program is a reasonably accurate measure of knowledge and/or competency, it should be upheld as valid by a court, regardless of the protests of those who fail.

Another area where programs are subject to challenge is with respect to formal education requirements. While courts often will grant associations a great deal of latitude in determining what are sufficient educational requirements, especially with respect to recognized professions, it often is prudent to have a competency or experience aspect of the program. For example, if an applicant for certification does not have a college degree, the association may want to provide an alternative, such as years of experience or competency testing.

Finally, oral examinations or other subjective elements in a certification program, while not impermissible per se, can be troubling and do leave an association vulnerable to charges of arbitrariness or unfairness. Ideally, exams should be objective and written, with oral interviews undertaken only for a good reason.




Because certification can have economic value to those seeking to become certified, some due process must be accorded those who fail.

The most fundamental due process is the right to reapply for certification or retake the certification exam. Indeed, re-examination virtually eliminates the possibility of recurring clerical or computational errors.

From a practical standpoint, other steps may be necessary, such as meeting with the failed candidate, reviewing the exam with the candidate, etc.


If an individual who has become certified subsequently fails to meet continuing requirements to maintain the certification, or if the certified individual takes some affirmative action which jeopardizes the certified status, such as violating a code of ethics, the association is justified in revoking the certification. However, the association must be very careful to provide full due process and fair procedures to the individual prior to imposing any punishment, including revocation, especially when the proposed revocation is based on alleged wrongdoing by the certified individual.

An instructive case in this regard is Lidenburg v. National Board of Certified Counselors. In this case, a certifying association initiated disciplinary proceedings against a certified individual based on alleged ethical violations. However, the individual challenged the disciplinary process, and the court issued a scathing opinion condemning the practices of the association from a due process standpoint. In particular, the court objected to the following practices:

  • Pending outcome of the proceeding, the individual's certified status was placed in suspension. The court found that his violated the fundamental principle of an individual being innocent until proven guilty.
  • The individual's attorney was very limited with respect to cross-examining witnesses or otherwise participating in the disciplinary hearing, while the association itself was fully represented by its own legal counsel.
  • The hearing examiner was the same individual who initially investigated the charge, decided that there was a sufficient basis to continue, and determined what the punishment would be.

While the court very reluctantly upheld the right of the organization to engage in this conduct, since the association's procedures allowed for it, the court felt compelled to express its opinion as to these procedures. The court stated that the association's procedures were “repugnant to this court's sense of decency” and compared them to a “medieval Star Chamber practice.”



Examinations and courses related to certification are subject to the Americans With Disabilities Act (“ADA”). Specifically, the ADA states as follows:

“Any person that offers examination or courses related to applications for licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.”

The U.S. Department of Justice, which enforces the ADA, has issued regulations stating that the purpose of the above-quoted requirement is to ensure that a certification examination accurately measures “the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills.” A disabled individual must have an equal opportunity to obtain the same result any other applicant,” i.e., an equal opportunity to demonstrate the skills, knowledge, and achievement that the certification examination is intended to measure.

What this means from a practical standpoint is that an association is, except as noted below, required to provide appropriate auxiliary aids or make other accommodations as necessary to allow disabled individuals to take the examination in such a manner that the individual's knowledge or skill (or whatever the examination is designed to test) can be accurately measured, and so that the individual does not fail the exam because of a disability rather than because of a lack of knowledge, skill, etc.

The most common accommodation requested by and provided to disabled individuals in connection with a certification program is extra time to take the examination. With respect to “auxiliary aids,” these can include any number of accommodations, including:

  • a reader
  • writers
  • amanuenses
  • large print exams
  • a separate testing room
  • frequent breaks
  • the ability to take the exam in different parts

Auxiliary aids can also include taped examinations, interpreters or other effective methods of making orally delivered material available to individuals with hearing impairments, Brailled or large print examination and answer sheets for individuals with visual impairments or learning disabilities, and transcribers for individuals with manual impairments.


There are three general exceptions to the requirement that a certifying association provide an accommodation to disabled individuals.

First, no accommodation need be provided if this would cause an “undue burden” to the association. In most cases, whether or not an accommodation would result in an undue burden usually is a question of cost. In fact, the Justice Department usually takes the position the auxiliary aids must be paid for by the association unless the cost would result in an undue burden.

Second, no accommodation need be made if to do so “would fundamentally alter the measurement of the skills or knowledge the examination is intended to test.” That is, the ADA does not require associations “to lower or to effect substantial modifications of standards to accommodate a disabled person.” As stated by one court: “The purpose of the ADA is to guarantee that those with disabilities are not disadvantaged...the ADA was not meant to give the disabled advantages over other applicants. The purpose of the ADA is to place those with disabilities on equal footing and not to give them an unfair advantage.”

Third, a certification examination can require that a certain skill be demonstrated or knowledge shown in a particular instance, if necessary to the performance of the job or profession that is the subject of the certification. For example, if a particular job requires certain skills, then a certification examination can test those skills, even if an individual applicant's disability prevents that applicant from performing the demonstration successfully. In an advisory opinion to a State board of medical examiners, the Department of Justice stated as follows: “The Board is permitted to impose eligibility criteria (i.e., ask questions) that screen out, or tend to screen out, individuals with disabilities if the criteria are `necessary' to ensure that the Board is licensing persons fit to practice medicine.” Similarly, in a letter to an organization that certifies emergency medical technicians, Justice said: “The Board is permitted to impose eligibility criteria (i.e., require a skill be performed in a certain way) that screen out, or tend to screen out, individuals with disabilities if the criteria are `necessary' to ensure that the Board is licensing person who can safely perform the duties of emergency medical technicians.”


The ADA restrictions on certification programs also require that certification examinations and courses be offered at facilities that are accessible to the disabled. If the particular facility is not accessible, the association may provide an alternative facility, but the location of this facility must be as convenient to the disabled individual as the normal locations, and the conditions of the examination must be comparable as well. Offering a proctored examination at an individual's home is a possible accommodation in this regard.

“Flagging” Disabled Applicant's Scores

Some organizations believe that if an applicant takes and passes an examination with an accommodation, this is not the equivalent of doing so without an accommodation. They also maintain that they have an obligation to notify third parties who may utilize the services of a certified individual, which of these individuals became certified with assistance of an accommodation. As a result, these organizations will “flag” in some manner those certificants who received an accommodation.

There have been few cases addressing the legality of flagging, but suffice to say it is a practice that has generated strong feelings on both sides of the issue. At this point, it cannot be said to be clearly in violation of the ADA, but organizations should have a strong, defensible reason for flagging if they choose to do so.


There are several additional points to keep in mind:

  • the ADA applies with equal force to recertification examinations or procedures;
  • the ADA applies not only to examinations but also courses related to certifications exams, such as review courses;
  • an association can require that an applicant submit proof of the claimed disability and can require the applicant to submit to examination by a medical professional selected by the association.


Lawsuits for violation of the ADA can be brought by disabled individuals who believe the association has not followed the requirements of the law, or by the U.S. Department of Justice.

In a suit by an individual, the only relief that a court may award is injunctive relief, that is, an order by the court requiring the association to comply with the ADA, e.g., by providing a particular auxiliary aid, etc. The Department of Justice, however, may seek monetary damages for individual victims of discrimination, and may ask to the court to impose a civil penalty on the association. A penalty cannot exceed $50,000 for the first violation, and $100,000 for any subsequent violation.



Because a certification program has implications with respect to the employment prospects of those who wish to take the exam, the association sponsoring the program may be held to be in the nature of an “employer” with respect to applicants for certification. The significance of this is that applicants who fail to become certified can bring suit under Title VII of the Civil Rights Act of 1964 for discrimination. Discrimination might be based upon the failure of the association to pass an individual in a protected category or, potentially, the fact that the failure rate of a certain protected group is unusually high.



While antitrust cases are certainly the most common types of lawsuits against associations with certification programs, tort liability is an emerging issue. The specific question is whether an association can be held legally responsible if an individual who has achieved certified status subsequently causes injury, either to person or property, while working in the employment or profession for which he or she has been certified.

Courts have held that organizations which certify products can be held liable if those products are defective. It also has been held that an organization which certifies or accredits facilities can be held responsible for a safety or health problem of the facility.

To date, however, there is no reported court decision holding an association liable, solely based on the fact of certification, for the negligent or other wrongful conduct of one whom the association has certified. Logically, it would seem that the human element would be a factor against holding the association liable.

By way of analogy, lawsuits have been brought against State and local governments for the negligent issuance of, or failure to revoke, a license. Courts have generally held that the government authority is not liable because it is not the proximate cause of the injury; rather, the licensed individual primarily is to blame.

There are important exceptions, however. For example, “Certification” implies that some bona fide testing, examination, or review of an individual's minimal qualifications, knowledge, or competency has been undertaken. If an association certification program does not include such testing, examination, or review, then the association, in effect, has committed a fraud or misrepresentation by bestowing certified status, and can be held liable for that.

Another exception concerns an association's own claims or advertising with respect to the qualifications of those certified. If these claims or advertising are not truthful, then liability may result.

For example, in one case an association published a brochure in which it claimed that those certified by the association had met certain standards. In fact, many certified individuals had been “grandfathered” when the program was begun, and had not met the advertised standards, nor had the association taken any steps to assure itself that those grandfathered met the program standards. Consumers who had used the services of one of the grandfathered certificants, and had been dissatisfied with his work, sued the association for misrepresentation, and the court held that they had stated a valid cause of action.

Associations can best protect themselves in this regard by having, first and foremost, a quality certification program that covers all areas necessary. Recertification is also essential to ensure that those practicing in the industry or their profession continue to be qualified. Finally, associations should be careful with respect to statements regarding their certification program, e.g., in promotional or marketing materials. They should not make any statements that could be construed as a guarantee of performance by certified individuals.


ABOUT THE AUTHOR: Hugh K. Webster is a partner in Webster, Chamberlain & Bean, 1747 Pennsylvania Ave., NW, Washington, DC 20006. He is a nationally recognized authority in law pertaining to nonprofit organizations of all types, the author of Law of Associations, and a contributing editor to the Nonprofit Legal and Tax Letter, the leading national newsletter on nonprofit legal developments. Mr. Webster can be contacted at (202)785-9500, (202)835-0243 (fax), This email address is being protected from spambots. You need JavaScript enabled to view it. (email).

Marketing Certification: Establishing Value For The Credential

The following paper was presented at the CESB 2000 Certification Symposium held February 8, 2000 in Alexandria, Virginia. 


This is a summary of the success factors for creating value and visibility for a certification or professional credential.  


What makes something or someone valuable? What are attributes of value? They are:

  • Useful
  • Differentiates – something special or not like other things
  • Connects with the human experience, mostly achievements, such as
      • Gains in knowledge or the security of knowing something
      • Gains in financial security – the paycheck or bigger income
      • Gains in quality of life – being better off tomorrow that you are today
  • Observable or relevant to daily experiences

When we talk about establishing value for a credential or certification, specifically, what is the point of view we need to keep in mind? In other words, who is most directly affected by your credential?

  • Those who have earned it?
  • Those in your field who have not yet applied themselves to earn it?
  • The employer of those certified and merely practicing in the field?
  • The customer of the employer? or
  • The “public” (which is several billion folks globally?

Suppose you wanted to double your program in one year. What would that mean to you? In credibility or prestige? In cash flow? In long-range earnings? (Recertification, for example)


Do you know how to achieve that kind of growth? If you want to grow your certification program, you first need to answer the following questions about your credential, organization, and the profession it serves.

  1. What is the big picture? How many people practice what you certify? What's the total potential number of people who should seek this credential?
  2. How many of that total have you certified? Are you representative of most?
  3. How many do you expect to enter the field or profession in the next 2-3 years? What is driving this growth?
  4. Why did you start your certification? Not the history, but what told you the credential was needed?
  5. Do you know the outcome or results of your certification? Another way to ask this question is — can you tell me a story about those who are certified by you in comparison with those who are not certified? Can you talk in specifics?
    1. Salary difference?
    2. Performance difference?
    3. What is the job title of someone with your certification and what do they do? In other words, if I were to be their job shadow for a week, what could I expect to see them do?

Some ways to achieve significant growth:

  • Help people find you and make it easy for them to have a conversation. Use your website and the power of the Internet.
  • Make things convenient. Don't make people work to have a simple relationship with you.
  • See if your certification stands up to the five quick questions people ask:
      • Will this save my time?
      • Will this save money?
      • Will this make me money?
      • Will this keep me out of trouble?
      • Will it make a difference in my life?
  • Be the authority in your area of certification and be prepared to explain your uniqueness, potential and “responsibility” in many public settings, e.g., Congressional testimony..
  • Take a look at your marketing materials... and your web site... and the letters you write... and the presentations you make, and see if communicates, clearly, in terms we've just discussed.
  • Compare your marketing with any of the 1500 or more other certification programs in this country.

Finally, it is vitally important for you to have an Information Strategy for the Information Age. You have a financial plan for your money. You have a calendar and a watch for your time. You have a strategic plan for your operations and future options. You have a human resources plan or policy book to guide your search for employees and ways to keep valuable employees with you. For the fastest growing resource in your business — information — a plan is also needed. People are out there surfing the web and learning how to use search engines. They are looking for answers, looking for jobs, looking for ways to advance their career, looking for many things to make their life more convenient, if not more enjoyable. If you are not looking at your materials and messages as others do, every day, you need to make this a priority. If you do not understand that customer loyalty is one click away, this will be a very hard lesson in the next three years.


ABOUT THE AUTHOR: Georgia Patrick is President of The Communicators, a marketing and innovation management firm located at 10072 Vista Court, Myersville, MD 21773. She is a nationally-recognized expert on credentialling and the marketing of credentials. Ms. Patrick can be reached by calling (301) 293-3350 or by email This email address is being protected from spambots. You need JavaScript enabled to view it..

A Primer on Credentials for Engineering and Related Fields


There are commonly held misconceptions regarding credentials in engineering and related fields. Some of the misconceptions lie in the incorrect application of the words used in the credentialling field; i.e., licensing, registration, certification, and accreditation. Engineers use the term "registered" interchangeably with "licensed" which contributes to the confusion since the two words have sharply different meanings to the public.

 A licenseis authorization granted by a government to perform a function or service, e.g., a driver's license, an engineering license, etc. Licensing is founded on the police powers of government to protect the health, safety, and welfare of the public. It requires the demonstration of the minimum degree of competence needed to perform the authorized function.


Registration is listing with and by some entity. It can be a governmental or non-governmental entity that does the registration, e.g., registering with Selective Service. Registration grants no authority, nor does it address an individual's qualifications.


Certification is a voluntary act which, according to some organized procedure, measures an individual’s qualification to perform a particular function. Because it is voluntary, it conveys no authority or privilege, i.e., one need not possess the certificate to legally perform a function or service, albeit custom or market forces may require it. Certification exists today in many professions and trades.


The term Specialty Certification is properly applied to programs which identify a special capability where a primary general credential exists. For example, licensed physicians are specialty certified when they demonstrate a particular expertise, e.g., surgery.


Accreditation is like certification in that it is voluntary and measures capability to perform. It differs in that it applies to institutions and programs, not individuals. A familiar example is the accreditation of education programs.


Engineers are not alone in the misapplication of these four words. Throughout American society the misapplication abounds and has been institutionalized by encoding them in laws and regulations.


The Roots of Engineering Credentials

Modern engineering is a far cry from its roots in designing the engines of war for medieval battles. The first specialization to occur was to separate civil engineering from military engineering. Today, Who's Who in Engineering lists more than 100 different engineering organizations, each with its own special interest.


In 1907, Wyoming was the first state to exercise its constitutional powers to regulate the practice of engineering. Between then and 1947, all states passed licensing laws for engineers, and by 1970, all 50 states and 5 legal jurisdictions of the U.S., e.g., Puerto Rico, had laws that regulated engineering practice in some way. These regulations were adopted to protect the public from those not properly equipped by virtue of education and experience to make the judgments necessary in the construction of products and useful facilities. Unlike medicine and law, these regulations contained exemptions allowing persons to practice engineering without a license. The result of these exemptions is that today about 80% of the two million practicing engineers in the United States are not licensed.


The lack of a universal requirement for a license mandated by the government and practical differences of opinion between licensing boards and certain practice groups led many engineering specialties to eschew licensing and pursue other forms of self-regulation, be they association membership or certification. These differences, and a host of underlying factors, personalities, and power struggles are other primary contributors to the ongoing debate regarding licensing and certification in engineering.


Certification and Specialty Certification in Engineering

The environmental engineering profession pioneered specialty certification in engineering. In 1955, leaders of that profession formed the American Academy of Sanitary Engineers (the termed then used to describe those referred to today as environmental engineers) to certify and, thus, distinguish those licensed civil, chemical, and mechanical engineers who had the special capabilities required in environmental engineering. This specialty certification program embraced the same principles found in the certification of medical specialties -- formal training at the college level, a state license to practice engineering, a prescribed amount of practical experience, a review of qualifications by peers, and examinations.


Like the general license to practice a profession, specialty certification seeks to identify those with the capabilities necessary to practice a particular specialty. This peer-based identification is provided to aid the public in obtaining specialized services from those uniquely qualified.


The argument over universal licensure for engineers precluded many disciplines or specialties from the benefits professionals accrue from licensing. As a result, certain engineering disciplines or specialities within the disciplines or scientific disciplines involved in the delivery of engineered products and facilities developed certification programs as a means by which those uniquely qualified could be identified from the large cross-section of technologists.


Decades later, there are many other engineering and engineering related organizations operating certification and specialty certification programs. There are 66 organizations operating one or more certification programs listed in the Directory of Engineering, Engineering Related, and Engineering Technician Programs (CESB 1998).


Regulation of Certification in Engineering

Concurrent with the growth in the number of certification and specialty certification programs was increasing concerns about this form of credentialling. The primary concerns were that certification would detract from licensing and that certificates would be issued without appropriately rigorous examinations.


In 1988, the National Society of Professional Engineers organized the First National Conference on Engineering Specialty Certification. Representatives of twenty-three engineering and technical societies explored the pros and cons of specialty certification vis-a-vis professional licensure and concluded by issuing a joint statement agreeing that "...specialty certification for engineers, properly conceived and administered, can be valuable to both the public and the engineering profession."


The outgrowth of this conference was the formation on April 24, 1990, of the Council of Engineering and Scientific Specialty Boards (CESB). The purpose of CESB is to instill some uniformity in engineering and technical certification programs and to accredit those credible programs on which the public can rely. The by-laws of CESB define its goals and objectives as the improvement of engineering practice for the public benefit through:

  1. The establishment of professional criteria and monitoring of qualifications used to recognize special capabilities in engineering and related fields of practice through certification.
  2. The encouragement of continuing professional development as a condition for continued certification.
  3. The encouragement of ethical practice as a condition for continued certification.

To recognize the technical diversity in the delivery of engineering services, CESB has established four categories of specialty certification:

  • Professional Engineer
  • Graduate Engineer
  • Engineering Related
  • Engineering Technician

All categories must adhere to certain prescribed minimums regarding the structure and resources of the certifying body, the operation of the certification program, public disclosure, and periodic recertification. Additionally, the CESB accreditation guidelines prescribe responsibilities accredited programs owe to applicants, consumers, and the public.


The four categories are distinguished principally by their prerequisites:


  • Professional Engineer -- Applicants must be licensed as Professional Engineers and possess 6 years of experience in the specialty following the baccalaureate degree of which at least two years must be obtained after they have been issued a license. The title "Diplomate" is used to denote licensed professional engineers who have been granted specialty certification.
  • Graduate Engineer -- Applicants must be graduates of an ABET-accredited engineering baccalaureate degree program and possess four years of experience after graduation in responsible charge in the specialty being certified. The title "engineer" is limited to use by certificants in this category and by those in the Professional Engineer category.
  • Engineering Related -- Any field not titled engineering, but related in some way to the practice of engineering is covered by this category. Applicants must possess an accredited baccalaureate degree and four years of professional level experience in the specialty being certified.
  • Engineering Technician -- Applicants must possess an accredited two-year associate engineering technology degree or equivalent training and two years of work experience relevant to the specialty being certified.

International Certification

There is increasing interest by many U.S.-based certification organizations in certifying persons located in countries other than those which have English as the official language. Often, the certification examinations have been offered only in English. This limits the pool of candidates.

Some certification programs are considering simply translating their existing English-based literature and examinations into other languages. This is not the best practice because alternate language examinations may not be equivalent to the English versions due to cultural differences, both generally and as pertains to the profession to be examined.

The following two papers offer some guidance on adapting examinations and information of interest to those certification programs considering adapting their examinations to other languages.

William C. Anderson, P.E., DEE
Executive Director
Council of Engineering & Scientific Specialty Boards

Guidelines for Adapting Certification Tests for Use Across Multiple Languages
by Stephen G. Sireci, Ph.D.

Carrying out Empirical Studies of Adapted Examinations
by Frederic Robin