EEOC questions necessity of high school diploma as employment requirementPosted On: Dec. 6, 2011 12:00 AM CST
WASHINGTON—Employers who require job applicants to have a high school diploma may be violating the Americans with Disabilities Act, says the federal Equal Employment Opportunity Commission in an “informal discussion letter” posted on its website.
Experts warn that although the letter, posted Dec. 2, does not have the force of law, it could signal further EEOC activity in this area, and employers would do well to reconsider job requirements that include a high school diploma in light of the agency's interest in the issue.
The letter, which was dated Nov. 17 and sent to an unidentified recipient, says, “You correctly point out that some individuals cannot obtain a high school diploma, and therefore cannot obtain jobs requiring a high school diploma, because their learning disabilities caused them to perform inadequately on the end-of-course assessment.
“Under the ADA, a qualification, standard, test or other selection criterion, such as a high school diploma requirement, that screens out an individual or class of individuals on the basis of disability must be job-related for the position in question and consistent with business necessity…Thus, if an employer adopts a high school diploma 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 letter, written by EEOC attorney adviser Aaron Konopasky, goes on to say, “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.”
Nigel F. Telman, a partner with law firm Proskauer Rose L.L.P. in Chicago, said that while the EEOC letter does not say anything new, “I could see them potentially...saying at some point” that a high school diploma requirement “may have a disparate impact on a particular class of people.”p>
Patricia K. Gillette, a partner with law firm Orrick Herrington & Sutcliffe L.L.P. in San Francisco, said, “The EEOC has become extremely active and aggressive in the way they're enforcing the federal law pertaining to discrimination, so I think they are looking for areas where they can impact wide groups of people and ensure that the laws are being followed.”
It is “almost like they're testing the water a little bit,” said Diana L. Hoover, a partner with law firm Hoover Kernell L.L.P. in Houston, of the EEOC.
Employers “just assume it's okay” to require a high school diploma. It helps them ensure sure both the applicant is not too young, assuming he or she must be at least 18 to have a diploma, and that the person has “some basic skill level of reading, writing and mathematical ability,” said Ms. Hoover.
However, employers should review their job requirements to confirm if there is a high school requirement that is necessitated by the job's duties, Ms. Hoover said.
Other recent areas of EEOC interest include age discrimination and discrimination against veterans with disabilities.