Thursday, December 15, 2011

EEOC on High School Diplomas and the ADA

It's hard to think of a more accepted job requirement than a high school diploma. How in the world can requiring employees to have high school diplomas violate the ADA? Believe it or not, the EEOC has found a way.

In a recent informal discussion letter (here), the EEOC notes a potential ADA problem with requiring high school diplomas. The letter specifically addresses the difficulties some individuals with learning disabilities have with obtaining diplomas. Here is the analysis:
Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).
Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.
Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.
It's worth noting that this is not an official opinion letter. Just another thing for employers to think about though...

HT: Randy Enochs on Avvo.

Image: Public domain work of federal government. Logo used in discussion of EEOC. Not official use.
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.