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.
Read more articles on employment law issues
at Employment and the
Law, a blog by Ashley Kasarjian
For more information about LexisNexis
products and solutions connect with us through our corporate site.