The EEOC issued an informal discussion letter discussing whether the requirement that an individual graduate high school is a permissible job selection criterion under the Americans with Disabilities Act.
The EEOC addressed this because, when employers automatically eliminate from consideration applicants who have not graduated, there may be situations in which the requirements of the ADA must be considered (e.g., an individual has a learning disability and cannot obtain a high school diploma). In the discussion letter, the EEOC explained that if a high school diploma requirement screens out individuals on the basis of disability, the requirement must be job related for the position in question and consistent with business necessity. Moreover, “[e]ven 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.”
There are certainly positions that require a high school degree. For example, a doctor cannot practice medicine without first obtaining the requisite degrees. Or a finance manager of a company likely needs a certain understanding of mathematics, finance, and business principles. On the other hand, there are positions that can be performed by someone who does not have a high school diploma, and an employer will have a difficult time meeting the “job related and consistent with business necessity” standard for such positions.
The EEOC explains that the determination of whether an individual can perform a job may require a consideration of the employee’s work history or the employer may need to allow the applicant to demonstrate his or her ability to perform the 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.
Employers should carefully consider any criteria used to automatically disqualify applicants. Universally-applied criteria that automatically excludes applicants have been used as the basis for disparate impact claims against employers. It is better to evaluate selection criteria at the outset to ensure that they are valid and legally defensible than when litigation is underway.
I just wanted to post a quick note to my readers and subscribers. I appreciate all of your support as Employment and the Law has celebrated its first year – and then some – of existence.
