Many, many companies require a high school diploma as the first qualification for applying for a job. Well now the EEOC says that the ADA (Americans with Disabilities Act) may invalidate that high school diploma requirement. According to an informational letter published on their website the EEOC claims that such a requirement may discriminate against people with learning disabilities. The EEOC says “…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.”
They point out that high school diplomas, as a job requirement, must be shown to be a genuine job related requirement. As they state “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).”
Now a high school diploma having to be a job related requirement is nothing new. One of the landmark cases that all HR professionals should know, Griggs v. Duke Power, dealt with a situation of a high school diploma being an artificial job requirement. It was used as the defining case for ADVERSE or DISPARATE IMPACT. As the EEOC says “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”.
However, under the ADA not only does this have to be job related but you also have to make allowances for whether the individual can perform the essential duties using reasonable accommodations. The summation of the information letter tells the story:
“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.”
So if you are automatically using a high school diploma as a baseline requirement for you jobs you may need to reconsider the business necessity of this requirement. For that matter, any other baseline requirement needs to be reviewed for its disparate impact and if you find it is screening out people with disabilities you then need to consider how reasonable accommodations may enter into the situation.
Just as a reminder, the Americans with Disabilities Act Amendment Act (ADAAA) requires you to engage in “interactive discussions” with anyone needing or requesting a reasonable accommodation.
Thanks to Maria Greco Danaher, writing for SHRM, for the inspiration for this post.