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April 2012 Legal Update

Illegal To Require High School Diploma?

Avoiding Hysteria Over EEOC’s Recent Letter

By Christopher W. Olmsted

Your job applicants should have a high school diploma, right?
Slackers need not apply. Would it be crazy to call that basic educational prerequisite a form of discrimination? Crazy or not, the EEOC says this might be disability discrimination. But before you launch into a diatribe about out-of-touch Beltway bureaucrats, let’s take a closer look at the EEOC’s opinion, and the EEOC’s recent effort to reduce the controversy created by that letter.

Is a Diploma “Job Related”?

In November 2011, the EEOC published an “informal discussion letter” which addressed high school diplomas. Apparently the letter responded to a question about whether a high school end-of-course assessment test was legal because some students with disabilities fail the test and therefore do not graduate, which in turn harms their career prospects.

The EEOC referred the inquirer to the Department of Education. Then it added commentary on the topic of high school diplomas as job prerequisites. “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.”

The EEOC’s letter points out that in any event employers shouldn’t require high school diplomas unless it is a job related prerequisite. “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.”

The letter raises two fundamental concepts when it comes to job qualifications:

1.) Job related. The letter reminds us that “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).” This concept comes directly from federal ADA regulations.

2.) Accommodation. The letter also reminds us that “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.”

The EEOC letter further explains: “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.”

Obviously educational requirements for different jobs may vary. An illiterate drop out might not be qualified for the office secretary position, but she might be qualified to fill the construction site laborer position. Requiring a high school diploma in the second instance might not be justified because the person can probably easily perform manual labor without the diploma. Such a prerequisite could deprive job opportunities to certain mentally disabled workers who are unable to earn a diploma. The secretary/ditch digger dichotomy is easy. But the line may be difficult to see for other positions. What basic level of math, science, reading and writing skills does the mail room clerk need? The assembly line worker? The telemarketer? Some jobs need the basic acquired intellectual skills associated with a high school diploma. The practical problem is drawing the fine line between those that do and those that do not. The EEOC’s position seems to be: You make the judgment call, and good luck because we’ll sue you if we disagree.

The EEOC letter continues by addressing the concept of reasonable accommodation: “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.”

Questions & Answers about EEOC Letter & High School Diploma Requirement

The November 2011 EEOC letter created much ballyhoo. The EEOC subsequently decided to publish a Q&A in an effort to simmer down the controversy. “There has been significant commentary and conjecture about the meaning and scope of the letter,” wrote the EEOC at the start of the Q&A. “The following questions and answers are meant to clarify these issues.”

Q: Have you just made it illegal for businesses to require a high school diploma?

A: No. 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 from obtaining a high school diploma to demonstrate qualification for the job in some other way.

Q: Are you telling people that they are protected by the ADA if they decide not to graduate from high school? Wouldn’t this create a disincentive to finish high school?

A: No. 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.

Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, if an applicant tells an employer she cannot meet the requirement because of a disability, an employer may have to allow her 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 her to demonstrate performance of the job’s essential functions. The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement.

Q: So, does that mean the employer must hire the person with a disability?

A: No. 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.

Q: Is the informal discussion letter a new interpretation of the law?

A: No. Like all of EEOC’s informal discussion letters, the letter simply applies the existing standards under the ADA and the EEOC's regulations. The EEOC’s informal discussion letters are meant to provide assistance for employers in complying with the laws. In this case the letter was intended to explain how the ADA applies when any job requirement (although a high school diploma was the specific example that we were asked about) excludes someone with a disability from a job.

Q: Is this the first time that a high school diploma requirement has been questioned as a possible violation of employment discrimination law?

A: No. The U.S. Supreme Court decided in 1971 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 whites in the relevant geographical area, and because the requirement was not job related for the position in question and consistent with business necessity. Griggs v. Duke Power Co., 401 U.S. 424 (1971). The courts and the EEOC have consistently applied the Supreme Court’s interpretation of the law ever since, and Congress confirmed it in the Civil Rights Act of 1991.

Additionally, in 2003, EEOC brought a lawsuit on behalf of an employee with an intellectual disability who was fired from her job as a nursing assistant in a residential care facility when the employer adopted a requirement that nursing assistants have high school diplomas. She had worked successfully in the job for four years and had several times tried to obtain her GED, but could not do so because of her disability. Her GED instructors offered to work with the employer to find an alternative way to assess the employee’s ability to do the job, but the employer refused. The employer settled the case with EEOC.

Practical Tips:

Why require a diploma? Before adding a diploma or degree to the list of job prerequisites, analyze whether it is necessary. What job duties require a certain level of educational aptitude? Will the aptitude be considered during employee’s performance evaluation? Identify the duties and the learning necessary to successfully perform the duties.

Consider accommodation. The ADA requires reasonable accommodation for disabled employees. If an applicant or employee failed to obtain the diploma on account of a disability, consider making an exception to the prerequisite if the worker can demonstrate that he or she can still perform the work.

Additional Resources:

EEOC Informal Discussion Letter Regarding High School Diplomas

EEOC Q&A Regarding High School Diplomas

This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2012 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.

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