Posted on December 28, 2011
Over the past decade, employers and human resources personnel have been repeatedly encouraged to update and modify employment applications and questionnaires to comply with the ever-expanding reach of federal anti-discrimination laws. Although some of the emerging federal prohibitions on pre-employment related inquiries and conditions are commonsensical, others are less obvious. Say, for example, your company requires all job applicants to have a high school diploma or equivalency certificate as a pre-condition to employment. While this type of educational prerequisite is common in many public and private sector workplaces, enforcement is, nonetheless, “risky business” in light of the Equal Employment Opportunity Commission’s (EEOC) strong stance against blanket educational requirements.
Since the 1960s, the EEOC has taken the position that high school diploma and equivalency requirements have a disparate impact on minorities, (most significantly on African Americans and Latinos), and may only be enforced when an employer can demonstrate that the requirement is “job-related and consistent with business necessity.” Until recently, the EEOC was primarily concerned with the disparate impact of such educational level prerequisites on the categories of race and gender. Last month, however, the EEOC posted a Discussion Letter written by one of its attorney advisors indicating that high school diploma or equivalent certificate requirements may also have an adverse impact on individuals with disabilities. Analyzing the impact of educational level prerequisites under the framework of the Americans with Disabilities Act (ADA), the EEOC stated the following:
“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 . . . 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 ©; 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and ©.”
In other words, even if an employer’s 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/her from meeting the requirement, can perform the essential functions of the job, with or without a reasonable accommodation. An employer 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.”
While EEOC Discussion Letters are not binding on any court, they are an accurate indicator of how the Commission will decide future discrimination charges brought under similar facts. For that reason, employers and human resources personnel alike should consider revising employment applications and questionnaires to limit high school diploma and equivalency requirements to only those positions for which the requirement is “job-related and consistent with business necessity.” The determination of whether a particular job validates a high school level education requirement will turn on the specific description and skills involved for the open position. When the particular job is unskilled or semi-skilled, for example, the educational requirement will often be found to be neither job-related nor consistent with business necessity. Moreover, even when the particular position involves literacy skills or mechanical ability, the diploma requirement will fail if proficiency in those abilities can be easily tested and assessed.
For more information about this EEOC Discussion Letter, or for guidance on whether or not your high school diploma requirement is job related and consistent with business necessity, please contact a Knox Labor and Employment attorney at (814) 459-2800.
Article written by Joseph V. Balestrino.