Start thinking outside the box: How can an applicant whose disability made a high school diploma impossible demonstrate job qualifications?
February 24th, 2012 | Pamela Wolf
Despite misguided claims to the contrary, the EEOC has not proclaimed that employer high school diploma requirements are unlawful. So don’t start rewriting job descriptions and qualifications — do, however, start thinking about other ways in which an applicant whose disability got in the way of a diploma can demonstrate the ability to do the job.
In response to the considerable, and sometimes confusing or misleading, discussion resulting from an EEOC informal discussion letter released at the end of last year, the federal agency has posted on its website a question-and-answer guidance document explaining the relationship between high school diploma job requirements and the Americans with Disabilities Act.
The guidance makes it clear that the letter, dated November 17, 2011, does not make it illegal for a business to require that applicants have a high school diploma. However, an employer may be required to permit someone who says she has a disability that prevented her from getting a high school diploma show by some other means that she is qualified for the job.
Protection is narrow. The Q&A also clarifies that “the ADA only protects someone whose disability makes it impossible for him or her to get a diploma.” The statute does not protect an individual who simply decided not to get a high school diploma.
Preference not required. Employers are also under no obligation to select an employee with a disability who has demonstrated the ability to do the job over a more qualified applicant. The employer does not have to give preference to a person with a disability over an individual who can perform the job better — employers are free to choose the best qualified person for the job.
Diploma requirements previously scrutinized.The idea that a high school diploma requirement might result in discrimination is not entirely new. While the EEOC’s informal discussion letter addresses high school diploma requirements in the context of the ADA, the Commission’s new guidance points out that a 1971 Supreme Court decision, Griggs v. Duke Power Co., 401 U.S. 424, ruled that a high school diploma requirement was discriminatory due to its disparate impact on African-Americans and because it was not job-related and consistent with a business necessity.
The Commission also brought suit in 2003 on behalf of a nursing assistant who despite four years in the position, was fired because she failed to meet a new high school diploma requirement due to her intellectual disability. Her GED instructors offered to help the employer assess her ability to perform the job by other means, but the employer refused. The case was settled short of trial.
What should employers do when an applicant says that a disability made a high school diploma unobtainable? In such circumstances, employers should consider the following suggestions offered by the EEOC:
- require the applicant to demonstrate the existence of a disability that actually prevents him or her from meeting the diploma requirement, perhaps through appropriate written documentation; and
- consider the applicant’s work experience in the same or similar jobs as an alternative means of demonstrating job qualifications; or
- permit the applicant to demonstrate performance of the essential functions of the particular job.
Of course the EEOC’s suggestions are worthless unless they are actually implemented. Therefore, employers should update policies and train recruiters and human resources staff on the proper protocol to use when an applicant states that a disability has made a high school diploma unobtainable.