You may have taken time off from work last month, but the federal Equal Employment Opportunity Commission (EEOC) was quite busy. As the Bureau of National Affairs and the Washington Times report, it posted to its website an informal advisory letter that has been getting a lot of businesspeople’s attention. To quote the BNA:
“[I]f an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma,” EEOC said.
Further, to satisfy the ADA, the employer must show that a job applicant with a disability cannot perform the job’s essential functions with or without a reasonable accommodation, even if he or she does not meet a standard that is job‐related and consistent with business necessity, the commission added.
Employers require high school diplomas as prerequisites for many jobs. Yet if the matter gets to court, it can be quite expensive and cumbersome for them to establish that such a screen is “job related and consistent with business necessity” — necessity being of course a legal term of art.
Some suggest the policy is not all that new or special since the EEOC has long taken the position that diploma requirements must be “job related and consistent with business necessity” if they serve to screen out members of minority groups less likely to have graduated from high school. But diploma requirements aren’t actually challenged very often on racial‐impact grounds, perhaps because correlations between ethnicity and high school graduation rates are shifting and contingent. The new wrinkle this time — that the protected group are the learning‐disabled themselves — makes a big difference. The diploma’s very purpose, after all, is to signal that its holder has achieved a level of proficiency that some with severe learning disability will find forever out of their reach.
“If I were hiring a janitor,” notes columnist Amy Alkon, “I’d need that janitor to be able to read the back of bottles of chemicals.” But it’s growing ever clearer that the point of the game is to attack employers precisely for wanting to hire candidates of ability.