Lack of High School Diploma No Reason to Refuse Employment

In November 2011, the United States Equal Employment Opportunity Commission (EEOC) answered a question about the effect of the Americans with Disabilities Act (ADA) on employment qualification standards that bar persons who do not hold high school diplomas from particular jobs. In the EEOC’s response, it said that an across-the-board high school diploma requirement may violate the ADA if the requirement effectively eliminates job applicants who cannot get a high school diploma because of a learning disability if:

• The requirement screens out persons who cannot get a high school diploma because their learning disability causes them to score poorly on end-of-course testing/assessment needed to earn the diploma; and
• The employer cannot prove that the diploma requirement is job-related and consistent with business necessity.

Even if an employer can establish that a high school diploma is a legitimate job requirement, with respect to particular applicants, the employer may need to consider whether there are other ways for applicants to show that they can perform the essential functions of the position, with or without reasonable accommodations, which do not involve taking the tests required to receive a diploma. If that is the case, the employer cannot use the lack of a high school diploma to exclude an applicant from consideration. It is important to note that a hiring employer has no obligation to ask an applicant why she does not have a diploma or a GED. Only when an applicant informs the employer that the reason for her lack of a diploma is a disability does an employer need to consider possible accommodations.

What Does This Mean for the Typical Employer’s Hiring Process?

The EEOC’s November letter created such a high level of concern that the EEOC recently posted a follow-up document answering questions raised by the letter. The new guidance, which is in question-and-answer format, responds to “significant commentary and conjecture” about the meaning and scope of the November 2011 letter. It makes these points:

• Employers are not prohibited from requiring that applicants have high school diplomas. But if someone who does not have a high school diploma because a disability prevented her from getting a diploma applies for the job, the employer must give her the chance to show, in some other manner, that she is qualified for the job.
• Individuals who simply decide not to complete high school or get a diploma are not protected by the ADA. The applicant without a diploma must have a disability and the reason for non-compliance with the degree requirement must be related to that disability.
• Most employers’ high school diploma requirements can still be applied. Only when an applicant tells his prospective employer that he cannot meet the diploma requirement because of a disability will that employer have to give the applicant an opportunity to show, in some other manner, that he could do the job.
• Even if a person with a disability and no diploma because of that disability receives the opportunity to show that he can perform the essential functions of a position, the employer will not be obligated to hire him if there are other applicants who can perform the job better. There is no preference requirement for a person with a disability.

The EEOC’s new guidance provides helpful clarification, including that employers may still require a high school diploma for a position. But employers must be aware and alert that in some situations, they may have to accommodate an employee or applicant whose ADA-qualified disability is what prevented her from obtaining a diploma. Indeed, the EEOC recently sued an employer over its firing of a nursing assistant who had been performing her job successfully for four years when the employer put a high school diploma requirement in place and the employee could not, because of her disability, pass the test required to obtain her GED.

In addition to the EEOC’s cautionary concerning applicants with disabilities, employers should closely examine the job-relatedness/business necessity of a high school diploma for unskilled and semi-skilled jobs because of the potential disproportionate impact on racial, ethnic or foreign-born protected groups, who tend to have a higher percentage of non-high school graduates. In fact, the first challenges to high school diploma requirements were on that basis. In 1971, the Supreme Court ruled that a power company’s requirement that applicants for janitor positions hold high school diplomas had an unlawful disparate impact on African American applicants. This decision established that employers cannot create an artificial requirement for entry-level positions for which the requirement, here a high school diploma, is not really needed to actually perform the job’s functions.

The prudent employer, then, will re-examine its jobs to determine whether a high school diploma or GED is really needed to perform each job and, if not, weigh the risks of retaining that requirement in light of the possible discrimination against certain groups that might result. Likewise, if an applicant claims to have a disability that prevented him from earning a diploma, the employer will have to consider whether the applicant could nevertheless perform the essential functions of the job with or without a reasonable accommodation.

For More Information

If you have questions about high school diploma requirements or your general obligations when dealing with applicants with disabilities, contact Joseph P. Hofmann at 717.399.6643 or the Stevens & Lee attorney with whom you normally consult regarding labor and employment issues.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.