EEOC and High School Diplomas

Employers are facing yet more uncertainty following the release of an “informal discussion letter” from the Equal Employment Opportunity Commission (EEOC), posted on the Commission’s website on December 2, 2011. The letter states an employer’s requirement of a high school diploma, long a standard criterion for screening potential employees, must be “job-related for the position in question and consistent with business necessity” and requiring same might violate the Americans with Disabilities Act (ADA).

The development also has some wondering whether the agency’s advice will result in an educational backlash by creating less of an incentive for some high school students to graduate.

Employers could run afoul of the ADA if their requirement of a high school diploma “ ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ ” the EEOC explained.

The Commission’s advice, which does not carry the force of law, is raising alarms among employment-law professionals, who say it could carry far-reaching implications for businesses.

Maria Greco Danaher, a lawyer with the labor and employment law firm Ogletree Deakins, said the EEOC letter means that employers must determine whether job applicants whose learning disabilities kept them from obtaining diplomas can perform the essential job functions, with or without reasonable accommodation. She said the development is “worthy of notice” for employers.

“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,” she wrote in a blog post.