While seeking a new employment opportunity, Marie Hall found the following job announcement:
“HIRING: DATY ENTRY CLERKS FOR XYZ COMPANY
Candidate must display a strong work ethic and possess the ability to thrive in a team setting. Experience with MS Office is required. Typing and data entry experience is strongly desired. Candidates may be required to stand for up to two hours at a time and lift and carry objects up to ten pounds. High school diploma required.”
Marie possessed the required data entry and MS Office skills, and she was fully capable of the physical requirements. However, Marie was concerned because she lacked a high school diploma. As a teenager, Marie was diagnosed with a learning disability that prevented her from successfully keeping up with her peers in high school. As a result, she grew increasingly frustrated, dropped out of high school and began working full-time. Marie wondered if she would be ineligible for the position because she lacked a high school diploma.
On November 17, 2011, the Equal Employment Opportunity Commission (“EEOC”) issued an informal letter discussing this very issue. The EEOC’s letter questions whether an employer’s requirement that an individual have a high school diploma is an acceptable criterion under the Americans with Disabilities Act (“ADA”). The letter addresses the concerns that may be raised under the ADA for such a requirement. In part, the letter provides:
“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.”
Therefore, it is incumbent upon employers with a high school diploma requirement to ensure that the requirement does not “screen out” an individual who may have been unable to obtain a diploma because of an ADA listed disability. Furthermore, if an employer chooses to require a diploma, they must be able to demonstrate that the diploma requirement is “job related and consistent with business necessity.” Thus, in the example noted above, if Marie can perform the job requirements for the data entry clerk position without difficulty, it will be hard for XYZ Co. to justify their diploma requirement.
This raises special concerns for employers. Today, employers must consider whether a high school diploma or a standardized test is a true indicator of the applicant’s capabilities. Even if the requirements are a true indicator of capabilities, employers must also go one step further and determine if their requirements violate the ADA. This means that even if the employer’s standardized test is well-crafted and truly represents a quality indicator of an applicant’s ability to succeed in the position, the employer must still consider whether the requirement prevents a disabled applicant from performing the essential functions of the job with or without a reasonable accommodation.
It is undisputed that some positions legitimately require a certain level of education. For example, a Juris Doctor degree is required to practice law and a college professor is required to have a Masters or a Ph.D. However, the EEOC is speaking to companies with positions that can reasonably be performed by someone who has not obtained a high school diploma. In these cases, an employer may be challenged in proving that the high school diploma is “job related and consistent with business necessity,” as noted in the EEOC’s letter.
HAVEN’T WE ALREADY SETTLED THIS ISSUE?
This is certainly not a new issue. In the 1971 landmark employment discrimination case, Griggs v. Duke Power Company, 401 U.S. 424 (1971), the Supreme Court addressed the legality of high school diplomas and intelligence tests as prerequisites to employment. At issue in Griggs, was the job requirements at North Carolina’s Duke Power Company. Duke Power Company had a history of providing the higher paying and “inside” jobs to Caucasians. African-Americans were limited to menial work in the labor department where they received very low wages.
Following the passage of Title VII of the Civil Rights Act of 1964, Duke Power was unable to overtly discriminate against African-Americans. Therefore, Duke Power introduced a requirement that individuals must possess a high school diploma or score above average on a standardized IQ test to work in non-labor positions. The requirement disproportionally disqualified African-Americans at a greater rate than Caucasians. During the time of the Duke Power Company case, few African-Americans possessed high school diplomas. Plaintiffs argued that neither the high school diploma requirement, nor the standardized were designed to measure an employee's ability to perform a specific job. Duke Power was unable to demonstrate how the diploma and testing requirements were any indicator of the applicant’s ability to perform their job. Introducing the “disparate impact” framework, the Court provided that “on the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.”
Thus, although it remains legal to require testing or diplomas for certain positions or promotions, the requirements are invalid when they are designed to or have the effect of excluding certain groups. In Griggs, the diploma and testing requirements had a racially disparate impact on African-Americans “since the requirement systematically screened out large numbers of black people at a much higher rate than white people.”
The EEOC is already receiving some backlash for its informal letter. Opponents of the EEOC’s position agree that the requirement may be invalid when it affects a large number of applicants, as seen in Duke Power. However, opponents contend that small businesses would actually be disproportionately affected by this measure. Opponents argue that small businesses do not generally hire a large number of people. If a legitimate, “colorblind” requirement exists, they contend that employers should not be penalized based on a single isolated incident that resulted in a claim of discrimination.
Many also believe that the letter will create a host of new discrimination complaints. A Washington Times article states, “a person who has a diploma and isn’t hired has no legal recourse, while the purportedly learning-disabled nongraduate has legions of bureaucrats and government lawyers ready to make life difficult for the small-business owner who has the impertinence to judge them “less qualified.”
WHAT DOES THIS MEAN FOR EMPLOYERS?
It is important to note that the EEOC only issued an “informal discussion letter.” On their website, the EEOC notes, “This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission. However, the discussion letter is already making waves in the business world and employers should brace for challenges as to whether their diploma or other educational requirements are job related.
The letter points out that the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified. Nevertheless, employers with these requirements should ensure that a high school diploma is actually necessary to perform the essential functions of the position. If employers find that a high school diploma is warranted, employers should then ask themselves if a “reasonable accommodation” could be provided to allow a person without a diploma to perform the job. The key is being aware of any job requirement that could automatically disqualify a group of applicants without just cause. Therefore, it is better to proactively ensure that all job descriptions are carefully tailored to the requirements of each position and all educational requirements are clearly necessary.
As always, when it doubt, it is a good idea to consult legal counsel to ensure the defensibility of a job requirement.
This article is provided for informational purposes only and nothing in the article should be construed as legal advice or legal recommendation.