For many jobs, employers require undergraduate or advanced degrees. For lower-level positions, a high school diploma often is expected, regardless of the nature of the job. However, the EEOC recently cautioned that such an educational requirement may be impermissible.
On November 17, the EEOC issued an opinion letter in response to an employer inquiry. The letter noted that some individuals with learning disabilities cannot pass high school exams and therefore don’t have a diploma.
An applicant with a learning disability may be protected under the Americans with Disabilities Act (ADA) and under state and local law. Once a condition is determined to be a disability, the employer has a duty not to discriminate and an affirmative obligation to reasonably accommodate.
The ADA specifically regulates preemployment requirements. As the EEOC explained in the November 17 letter:
“[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 the ability to perform the job’s essential functions (i.e. its fundamental duties). 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.”
The EEOC then applied these principles to a high school diploma prerequisite. If the prerequisite screens out applicants who could not graduate because of a learning disability, the employer must show that the diploma requirement is “job related and consistent with business necessity.” If a person without a diploma can easily perform the essential job duties, the employer can’t defend the requirement.
Even if the diploma requirement is demonstrably “job related and consistent with business necessity,” the employer may still be unable to automatically exclude applicants with disabilities and without diplomas. Instead, an individualized review may be necessary. The EEOC suggested that the employer may need to consider the applicant’s work history or allow the applicant to show that he or she can perform the essential job functions.
Although not discussed in the November 17 letter, a high school diploma requirement also can create potential liability for race or other discrimination. In 1970, the U.S. Supreme Court, in Griggs v. Duke Power, invalidated a diploma requirement, finding that it violated Title VII of the Civil Rights Act of 1964. Duke Power required applicants to have either a high school diploma or a specified score on an IQ test. These criteria disqualified African Americans at a substantially higher rate than whites. Since Duke Power could not show that these requirements successfully measured the ability to do the jobs in question, it could not continue to use them.
If an employer would like to set educational requirements, how can it avoid discrimination claims?
1. Carefully evaluate whether the educational prerequisite really is necessary.
Is there a relationship between educational attainment and ability to perform the job? If not, the employer should consider whether to keep the requirement. The employer still can choose the best qualified candidate – including one with superior educational credentials – so long as all who can do the job have the chance to be considered on their merits.
2. If the educational requirement is necessary, be prepared to demonstrate why.
The starting point for the demonstration is the job description. Does it identify the essential job functions? If so, do those functions require a diploma? Are these same functions considered in the performance evaluation process? Will the supervisor – who oversees the performance of the work – support the requirement? If the employer doesn’t know the answer to these questions, it isn’t ready for the discrimination claim.
3. Even if the educational requirement is permissible, consider making an exception.
If an applicant reports a disability and requests an accommodation, the employer should consider allowing the applicant to prove job proficiency, either through past employment success or through on-site skills demonstration. The applicant may request other accommodations in the selection process, which the employer should consider. The employer should document all of these steps, so it can show that it responded properly to the accommodation request.
If you have questions about the information in this post or about your organization’s application and selection process, please feel free to contact the Foster Pepper Employment & Labor practice group.