The Equal Employment Opportunity Commission (“EEOC”) thinks so. The EEOC recently posted a letter to its website stating that it may be unlawful for employers to require a job applicant to have obtained a high school diploma if the applicant suffers from a learning disability and has been unable to obtain one. The EEOC’s position represents a significant departure from traditional interpretation by the courts with regard to matters of unintentional discrimination resulting in a disparate impact on certain groups.
In an “informal discussion letter” the EEOC stated that requiring a high school diploma must be “job related for the position in question and consistent with business necessity.” Based on this statement, the EEOC apparently believes that employers might violate the Americans with Disabilities Act (“ADA”) if they require a high school diploma for a particular position which has the effect of disqualifying applicants who have been unable to graduate from high school due to a learning disability. The EEOC’s position appears to place employers in a very difficult position.
Employers who require their job applicants to have obtained a high school diploma generally do so in order to obtain applicants who have demonstrated the commitment and intellectual capacity to enable them to be trusted with more complex tasks in the workplace. Based on the EEOC’s decision, however, an applicant’s failure to have obtained a high school diploma may trigger a duty on the part of the prospective employer to query as to why that applicant has not obtained a high school diploma. Yet, this situation creates a catch-22 for employers. On one hand, an employer is potentially insulated from claims of discrimination asserted by mentally handicapped job applicants if the employer maintains an application process which does not consider (nor does it seek to learn) information regarding an applicant’s disabilities. Yet, on the other hand, turning a blind eye to a learning disability which precluded the applicant from obtaining a high school diploma, according to the EEOC, may violate the ADA. As a result, the EEOC’s position potentially exposes employers to allegations by disabled job applicants who claim that an adverse hiring decision was the result of discriminatory animus, either because the employer asked about disabilities, or because the employer did not select them for employment because they had not obtained a high school diploma and were unable to do so because of their disability.
This circumstance may be avoided where a high school diploma is in fact necessary for an applicant to perform the essential functions of the available job. Accordingly, where a high school diploma requirement is imposed, employers should carefully evaluate the job description and duties associated with the position to ensure that a high school education is actually required to perform the essential functions of the job. Where an employer determines that the essential functions of a job can be performed without having obtained a high school diploma, employers may wish to consider removing this condition as a basis upon which hiring decisions are made.