The HR Specialist

Could high school diploma requirement violate the ADA?

01/05/2012

UPDATE, FEBRUARY 2012: The EEOC issued a Q&A Guidance document in February 2012 to try to further explain their stance on this issue. See the Q&A in the box below.

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An “informal discussion letter” from the EEOC had employment-law circles buzzing early in 2012 — and creating uncertainty about employer’s use of high school diplomas as hiring criteria.

The nonbinding EEOC letter (see below) said employers, in some instances, could infringe on the Americans with Disabilities Act (ADA) when requiring all applicants to have a high school diploma.

According to the EEOC letter, “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 you can prove a diploma requirement is “job-related” and necessary for business, you must also show that an applicant who doesn’t meet that standard (say, due to a learning disability) is unable to perform the essential functions of the job, even with an accommodation.

Attorney Maria Danaher of Ogletree Deakins in Pittsburgh says that while employers are not required to “prefer” a learning disabled applicant over other applicants with more extensive qualifications, “it is clear that the EEOC is informing employers that disabled individuals cannot be excluded from consideration for employment based on artificial barriers in the form of inflexible qualification standards.”

 

TEXT OF THE ORIGINAL EEOC DISCUSSION LETTER

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission. November 17, 2011

[ADDRESS]

Dear ____:

This is in response to your letter, dated October 9, 2009, and postmarked October 12, 2011, asking whether the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), prohibits the State of Tennessee from requiring students with learning disabilities to take “Gateway tests” or “end-of-course assessments” in order to receive their full high school diplomas. We responded to the same inquiry when we received it in December of 2010, by referring you to the Department of Education. Please find the earlier response attached.

In the event that you found our earlier response incomplete or were seeking additional clarification, however, we are responding to a statement in your letter that raises a concern under Title I of the ADA, 42 U.S.C. §§ 12101 et seq., which EEOC enforces. 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.

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. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

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.
We hope this information is helpful. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.

Sincerely,
Aaron Konopasky
Attorney Advisor
ADA/GINA Policy Division


New Guidance on Diploma Requirements and the ADA

NOTE: After the initial EEOC letter caused a stir among employers, the agency released the following Q&A guidance in February 2012 to try to clarify the issue.

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Background:  On November 17, 2011, the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards for jobs.  The letter can be found at http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html.  There has been significant commentary and conjecture about the meaning and scope of the letter.  The following questions and answers are meant to clarify these issues.

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

Answer:  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.

Question:  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?

Answer:   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.

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

Answer: 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.

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

Answer:  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.

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

Answer:  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.

 


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