After an informal discussion letter the Equal Employment Opportunity Commission (EEOC) issued in November 2011 raised more questions than it answered, the agency decided to release additional guidance on when an employer potentially violates the Americans with Disabilities Act (ADA) by requiring employees to have a high school diploma. In the discussion letter, the EEOC stated that:
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.
According to the EEOC, “[t]here has been significant commentary and conjecture about the meaning and scope of the letter.” To clarify the legality of requiring a high school diploma under the ADA, the EEOC posted a series of questions and answers to its website.
Through these Q&As the EEOC explains that employers may continue to have high school diploma requirements. However, the employer may have to allow individuals who claim to have a learning disability that prevents them from earning a diploma “to demonstrate qualification for the job in some other way.” Such methods may include consideration of relevant work experience or allowing the applicant to demonstrate that he or she can perform the essential job functions.
The guidance stipulates, however, that the ADA “only protects someone whose disability makes it impossible for him or her to get a diploma. It would not protect someone who simply decided not to get a high school diploma.” An employer would be permitted to require applicants to prove that they have the alleged disability and that the disability prevented them from meeting the high school diploma requirement.
In addition, the guidance states that an employer is still permitted to hire the most qualified person for the job, and does not have to give preference to the individual with the disability over someone who can perform the job better.
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