At present, there are as many as 25 million workers age 18 to 64 who do not have a high school diploma or a General Educational Development (GED) equivalent. Many employers – likely without even thinking – include a diploma requirement as part of their standard set of qualifications for a position. But, a recent Informal Discussion Letter from the Equal Employment Opportunity Commission (EEOC) should cause employers to think carefully before including such a requirement.
In its letter, the EEOC points 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.” As a result, a diploma requirement may have the effect of screening out individuals with learning disabilities.
Under the Americans with Disabilities Act (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 an applicant’s ability to perform the fundamental responsibilities of the job in question.
But, that measure is simply the first of two steps. Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with a reasonable accommodation.
The EEOC suggests the following accommodations in its letter: (a) “considering relevant work history” and/or (b) “allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process.” But, in the end, the EEOC makes clear that the employer is by no means required to prefer a learning disabled applicant over other applicants who are better qualified.
Bottom Line
While this is not an official opinion letter from the EEOC, it should cause employers who automatically include a high school diploma as a baseline requirement for positions to reconsider the business necessity of this requirement. Moreover, even where the diploma requirement is job related and consistent with business necessity, employers need to be prepared to accommodate learning disabled applicants who lack a diploma, but who are capable of performing the essential functions of the job.
The letter does not address whether the EEOC will go so far as to require employers to affirmatively notify applicants that the employer will accommodate applicants who lack a diploma. Otherwise, learning disabled applicants would likely not apply to a position where a diploma is required. Further guidance is needed to clarify this issue.