REQUIRING APPLICANTS TO HAVE A HIGH SCHOOL DIPLOMA

MAY VIOLATE FEDERAL LAW SAYS EEOC

Charles D. Lawson

In a recent letter to another federal agency, the Equal Employment Opportunity Commission (EEOC) declared that employers who require applicants to have a high school diploma when seeking particular positions may violate the Americans With Disabilities Act (ADA).1 The letter, posted on the EEOC's website on December 2, 2011, is not an "official" opinion of the agency, but should serve as a signal to employers that the EEOC will be scrutinizing all criteria used by employers to screen applicants for employment.

In the case before it, the EEOC declared that employers may not use a high school diploma requirement to screen out applicants who were unable to obtain a diploma because of a condition qualifying as a learning "disability" under the ADA, unless the employer demonstrates that the requirement is "job related for the position in question and consistent with business necessity." The diploma requirement would not meet this standard if the job in question were easily performed by a person without a diploma. Moreover, even if the requirement met the EEOC's standard in general, an employer must still assess whether a particular "disabled" applicant could perform the essential functions of the position sought, with or without accommodation. If so, the diploma requirement could not be used to screen out that applicant.

Though not an "official" pronouncement of the EEOC, and despite the EEOC's caveat that an employer need not "prefer" a disabled candidate over better qualified candidates without a disability, employers must still be alert to the message the agency charged with enforcing many of the nation's major anti-discrimination laws is sending: any criteria, however neutral on its face and however reasonable in appearance, may not be used to screen out applicants for employment without a showing that the criteria is actually related to the performance of the job in question.

If you would like further information please feel free to contact the author or any member of our Labor and Employment group.

1 http://1.usa.gov/vwXcls

About the author: Mr. Lawson received his B.S. from the University of Tennessee at Chattanooga, magna cum laude, in 1994, and his J.D. from Vanderbilt University in 1997 where he was elected to the Order of the Coif. He is a member of GKH's Labor and Employment group and specializes in all phases of the employer-employee relationship, including wage and hour, FMLA, ADA, unemployment compensation, and discrimination/harassment law. He provides regular employer counseling on issues ranging from workplace policy development and labor law compliance to non-competition and confidentiality issues. He also defends employment claims filed with administrative bodies such as the EEOC and the Tennessee Human Rights Commission, as well as claims filed in state and federal court. Mr. Lawson's work with employers is designed to educate them about particular areas of the law governing the employment relationship, with a focus on minimizing exposure to employment-related claims and providing cost-effective litigation strategies should litigation arise. 

This blog is not intended to create an attorney/client relationship or provide legal advice. Please contact the author if you have any questions or comments regarding the subject matter.