It may seem that requiring a high-school diploma for a job is a correct answer. However, a recent “informal discussion letter” from the Equal Employment Opportunity Commission (EEOC) indicates that you may need to do more studying before making that choice.
Background
In October 2011, the state of Tennessee wrote the EEOC, 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 high-school diplomas.” The EEOC initially responded by referring the state to the Tennessee Department of Education. However, the EEOC then took the opportunity to address one statement in the letter that raised employment-related concerns for the agency under Title I of the ADA. We want to ensure you are aware of the agency’s position on the matter.
As the EEOC noted, Tennessee pointed out that some individuals cannot obtain a high-school diploma. Thus, because their learning disabilities caused them to perform inadequately on an end-of-course assessment, they cannot obtain jobs requiring a high-school diploma. In its second response, the EEOC took the opportunity to set out ― quite explicitly ― its position regarding the requirement of a high- school diploma as a job qualification criterion.
While you’re likely familiar with the EEOC’s approach, we believe you may want to revisit your hiring criteria in light of the agency’s recent guidance. These points are of particular importance.
- Under the ADA, a qualification standard, test, or other selection criterion (e.g., requiring a high-school diploma) that screens out an individual or a class of individuals on the basis of 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.
- Even when 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, you must also demonstrate that the standard or criterion cannot be met and the job cannot be performed with a reasonable accommodation.
- If you require a high-school diploma for a job and the requirement screens out an individual who is unable to graduate because of a learning disorder that meets the ADA’s definition of “disability,” you may not apply the standard unless you can show that the diploma requirement is job-related and consistent with business necessity. However, you will not be able to make that showing if, for example, 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, you 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. You may do so by, for example, 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 an individual can perform the job’s essential functions with or without a reasonable accommodation despite the inability to meet the diploma requirement, you may not use the requirement to exclude the applicant.
- You are not required to favor an applicant with a learning disability over other applicants who are better qualified.
The informal discussion letter was posted on the EEOC’s website on December 2, 2011, and is available at www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_ standards.html.
Bottom Line
While the EEOC notes in the posted letter that its response is an informal discussion of the issues and shouldn’t be considered an official opinion of the agency, prudent employers would be well advised to be mindful of these standards and the EEOC’s analysis when (1) evaluating the use of qualification standards or criteria for a position and (2) using those standards or criteria to exclude an applicant from employment.
Jeanine Poole is a partner with Sulloway & Hollis, P.L.L.C. in the firm’s Concord, New Hampshire, office and an editor of New Hampshire Employment Law Letter. She may be contacted at jpoole@sulloway.com.