It is common for employers to require that prospective employees have a high school diploma to apply for certain jobs. But what if a high school diploma requirement was disqualifying prospective employees with disabilities who did not earn a high school diploma, but could otherwise perform the job? And would such a requirement violate the Americans with Disabilities Act?
According to the U.S. Equal Employment Opportunity Commission (EEOC), the answer is “yes.” In an “informal discussion letter” that could have far-reaching and profound implications for persons with disabilities seeking employment, the EEOC held that under the Americans with Disabilities Act (“ADA”) employers cannot use a high school diploma requirement to weed out qualified applicants with disabilities. The employer must instead consider whether the essential functions of the job could be performed regardless of diploma status. If yes, then the employer must make “reasonable accommodations” for the person to perform the job (although the prospective job applicant need not be given preferred status for the job over a non-disabled applicant). Here’s how the EEOC articulated the standard:
“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.”
In EEOC: High school diploma requirement might violate Americans with Disabilties Act, Dave Boyer of The Washington Times describes how employment attorneys are advising their clients in the wake of the EEOC’s letter. Attorney Mary Theresa Metzler recommends that employers “review their job descriptions to determine if a high school degree is truly necessary, or would aid the employee in performing the essential functions of the particular job.” Metzler provides perspective on the EEOC’s thinking in the same article:
The EEOC may be inclined to test its view on the high school diploma requirement and its impact on the disabled in a court case. While such a requirement is routinely included by many employers, a deeper analysis may demonstrate that a lesser educational requirement might suffice.
My Take – While some may view the EEOC’s recommendations as sending the wrong message at a time when our national and state education policies seek to increase high school graduation rates, as previously noted in this space, the sad fact remains that the employment rate for persons with disabilities remains unacceptably low. According to the U.S. Bureau of Labor Statistics, only 21% of all disabled adults participate in the workforce, compared to 70% of their non-disabled counterparts. By insisting that employers examine their threshold job applicant requirements more closely, the EEOC is doing its part to help bring more persons with disabilities into the workplace. Real jobs for real pay for people with disabilities can and should be more than a lofty aspiration. If a person with a disability did not earn a high school diploma because of their disability, but is otherwise qualified to perform a job, employers should do their part to help bring that person into the workforce.
Beth T. Sigall
January 8, 2012