The United States Equal Employment Opportunity Commission (EEOC) recently published guidance addressing whether employers violate the Americans with Disabilities Act (ADA) when they require a high school diploma for certain jobs. This guidance was issued in response to a November 2011 letter, in which the EEOC stated that such a requirement may violate the ADA if it screens out individuals who cannot obtain a diploma on account of a learning disability, unless the employer can demonstrate that a diploma is both job-related and consistent with business necessity.
In that earlier letter, the EEOC stated that an employer that adopts a high school diploma requirement for a job, and that requirement "screens out" individuals who cannot graduate because of a learning disability, the employer may not use a diploma as a minimum job requirement unless it can demonstrate that a diploma is both job-related and consistent with business necessity. Where the job functions could otherwise easily be performed by someone who does not have a diploma, an employer's insistence on a high school diploma would be unlawful.
The November 2011 letter went on to explain that, even if the diploma requirement was job-related and consistent with business necessity, the employer could still be found liable under the ADA if it failed to consider whether such a learning disabled applicant could perform the essential functions of the job applied for with reasonable accommodation. Under such circumstances, the EEOC suggested that employers consider relevant work history and/or allowing the applicant to demonstrate an ability to do the job's essential functions during the application process.
In its more recent guidance, the EEOC reiterated that:
- While the law does not prohibit an employer from requiring that a job applicant have earned a high school diploma, the employer may have to allow an individual who says that a learning or other disability prevented him/her from obtaining high school diploma to demonstrate qualification for the job another way;
- The ADA only protects people whose disability made it impossible for them to obtain a diploma. It would not protect someone who simply decided not to get a high school diploma; and
- Where the employer is choosing from among multiple applicants, it may still choose the most qualified applicant and need not prefer the applicant with a disability over someone who could perform the job better.
A copy of this recent guidance is available on the EEOC's website.