EEOC: Requiring High School Diploma Can Violate the ADA

The EEOC recently published additional “guidance” concerning an issue it raised last Fall while addressing a question about GED testing. In November, the EEOC published a letter in response to a question which indicated that an employer could violate the ADA by requiring job applicants to have a high school diploma if that requirement screened out individuals with learning disabilities who could not obtain the diploma and if the employer could not demonstrate that the requirement was job related and consistent with business necessity:

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). 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. . . .

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.

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.

In 1971, the Supreme Court similarly held that it would violate Title VII to require a high school diploma for janitorial positions if such a requirement disproportionately screened out otherwise qualified African-American applicants (some of whom had been unable to obtain a diploma during school segregation when some counties closed all public schools rather than integrate them). The EEOC is taking the same position under the ADA and in 2003 found an employer to have discriminated against a nurse aide who had been performing the job successfully for four years, but then was terminated after she could not meet the employer’s new diploma/GED requirement because of her learning disability. The employer settled the dispute rather than litigate it.

In the 2012 guidance, the EEOC sought to clarify its November letter as follows. First, it is not illegal for an employer to require 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.” Second, the employer may still select the best and most qualified individual for the job; the ADA does not create a hiring preference. Finally, individuals who choose (for personal or other reasons) to not get a high school diploma are not automatically protected by the ADA; only individuals whose mental or physical impairments made it impossible to get a diploma would be protected.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.