|NUMBER 313||THE NEWSPAPER OF EDUCATION RIGHTS||FEBRUARY 2012|
|EEOC Stifles Students and Punishes Employers|
A high school diploma has long been considered the most basic requirement for entry-level employment. And while the value of that diploma has slipped thanks to ever-declining educational standards, its status as an indicator of adulthood and basic competency has not — until now.
The EEOC's letter offers an expansive new interpretation of the Americans with Disabilities Act (ADA) when it explains,
Thus, if 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.
Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job's essential functions during the application process. If the individual can perform the job's essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.Though the EEOC states that the letter is merely "an informal discussion" and "should not be considered an official opinion of the EEOC," the legal implications are clear. "Employers should take note," argues Dan Danner of biggovernment.com:
Despite this being an "informal" letter, EEOC investigators and trial lawyers will undoubtedly use this to their advantage. It continues an unfortunate pattern of federal agencies quietly making policy and stepping up enforcement on small businesses for the slightest missteps.Labor and employment lawyer Maria Greco Danaher agrees:
While an employer is not required to 'prefer' a learning-disabled applicant over other applicants with more extensive qualifications, it is clear that the EEOC is informing employers that disabled individuals cannot be excluded from consideration for employment based upon artificial barriers in the form of inflexible qualification standards.Business owners are not the only people who should be concerned about this development. Students will have little incentive to finish high school if they know they can earn a living without a diploma, and there may well be a rush to diagnose able students with learning disabilities so they can receive preferential treatment in the workplace.