May 8, 2012

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EEOC Provides Guidance on High School Diploma Requirements and the Americans with Disabilities Act

Are Your Company's Application and Job Qualification Standards in Compliance?
 
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued additional guidance clarifying its position in a discussion letter about how the Americans with Disabilities Act (ADA) applies to job qualification standards.

In its November 2011 informal discussion letter, the EEOC stated:

  • [I]f 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.

The EEOC added that the employer may make this determination by taking into consideration the applicant's relevant work history and/or by allowing the applicant to demonstrate an ability to do the job's essential functions during the application process. The Commission noted that if the applicant can perform the essential functions of the job, with or without a reasonable accommodation, the employer may not use the high school diploma requirement to exclude the applicant despite the applicant's inability to meet the standard. The Commission, however, stated that an employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.

As a result of the informal discussion letter, the EEOC received "significant commentary and conjecture about the meaning and scope of the letter." In an effort to clarify the issues in the November 2011 letter, the EEOC issued some guidance in a set of questions and answers (Q&A).

The recent guidance set forth in the Q&A noted that:

  • Nothing in the letter prohibits employers from adopting a requirement that a job applicant have a high school diploma. However, an employer may have to allow someone who says that a disability has prevented him or her from obtaining a high school diploma to demonstrate qualification for the job in some other way.
  • The ADA only protects someone whose disability makes it impossible for him or her to get a diploma. It would not protect someone who simply decided not to get a high school diploma.
  • If an applicant tells an employer he or she cannot meet the high school diploma requirement because of a disability, an employer may have to allow the applicant to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing the applicant to demonstrate performance of the job's essential functions. The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that he or she has a disability and that the disability actually prevents the applicant from meeting the high school diploma requirement.
  • Even if the applicant with a disability can demonstrate the ability to do the job through some means other than possession of a high school diploma, the employer may still choose the best qualified person for the job. The employer does not have to prefer the applicant with a disability over someone who can perform the job better.
  • This is not the first time that a high school diploma requirement has been questioned as a possible violation of employment discrimination law. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the U.S. Supreme Court held that a high school diploma requirement was discriminatory because it had a disparate impact on African-Americans who had high school diploma rates far lower than Caucasians in the relevant geographical area, and because the requirement was not job related for the position in question and consistent with business necessity.

The EEOC's Q&A provides helpful clarification of an employer's duties under the ADA and how the ADA applies to a company's job qualification standards. Employers should look at their position requirements and ensure that those requirements are job related and consistent with business necessity. Employers should also keep in mind that if an applicant has a disability, they may have a legal obligation to accommodate the applicant.

If you have any questions or concerns about your business's application and qualification standards or need assistance in revising your ADA policies and procedures, please contact Andrea Lovell at (602) 440-4832, or any other member of Ryley Carlock & Applewhite's Labor and Employment practice group.

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