Date: January 17th, 2012
Categories: Employment Law

In a recent “informal discussion” letter from the Equal Employment Opportunity Commission (EEOC), the EEOC’s Legal Counsel advised an anonymous employer that requiring a job applicant to have a high school diploma could be considered an act of discrimination under the Americans with Disabilities Act (ADA). Specifically, “[u]nder the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity.”

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 [a] business necessity.” Though this advisory letter does not carry the force of law, it merits careful consideration by employers.

For the past several years, the EEOC, Labor and Industries, and other agencies have forced employers, through increased enforcement, to write (and re-write) increasingly focused and accurate job descriptions. Now, more than ever, it is important that employers pay close attention to their job descriptions, listing only those requirements actually required to perform the essential functions of the position. Now, employers may also need to be prepared to defend why requiring a high school degree is a “business necessity.”

Obviously, for many positions some educational qualifications are an absolute requirement. But for those positions which you have difficulty providing a reason for requiring a high school diploma, consider excluding the qualifier, or list the educational qualification as “preferred” instead of “required.” As noted in the EEOC’s letter, the employer is putting itself at risk of discriminating where the listed educational requirements “screen out” an individual with a learning disability. Although an employer is not required to hire a learning-disabled individual over other applicants with more extensive qualifications, it is clear that the EEOC will not tolerate employers who screen out disabled applicants from consideration for employment based on a qualification for which there is no actual business necessity.

If you choose to exclude the high school degree requirement for a job altogether, consider replacing it with a detailed list of the training, certification, knowledge, experience, and skills, actually required for the position. Not only will those qualifications be easier to defend, but often the fact that an applicant has graduated from high school doesn’t tell you whether they have the skills needed to perform well in the position.

Reviewing your job descriptions on a yearly basis is a best-practice—as an employer you should strive to have descriptions that reflect what the employee is actually doing in the workplace and what skills are required to perform the job. This year in your annual reviews, take a look at the positions for which a high school degree is required and evaluate how you would defend that requirement if the EEOC came knocking. Employers should also review job descriptions for positions when hiring to ensure that if a high school degree is required, it is necessary to performing the essential functions of the job.

Although the EEOC’s letter is merely advisory, it would not be surprising if they chose to test their view of the high school diploma requirement in a court case in the near future. Reviewing and adjusting your job descriptions now will keep your company from becoming that test case.