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If an employer's high school diploma job requirement screens out an applicant with an Americans with Disabilities Act (ADA)-covered learning disability, the employer may not apply the standard absent its ability to demonstrate that the diploma requirement is job related and consistent with business necessity, accord­ing to an informal discussion letter released by the EEOC on December 1, 2011.

The inquiry, however, doesn't end there. The employer may also be required to determine whether the applicant can perform the essential functions of the job, with or without a reasonable accommodation.

The letter, dated November 17, 2011, notes that some individuals are unable to obtain a high school diploma, or a job requiring a high school diploma, because their learning disabilities caused them to perform inadequately on the end-of-course assessment.

Under Title I of the ADA, "a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity," according to the letter. A qualification standard which accurately measures the ability to perform the job's essential functions — i.e., its fundamental duties — will meet the job related, business necessity requirement.

However, the letter instructs, even when a challenged qualification standard, test or other selection criterion is job related and consistent with business neces­sity, "if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation."

Accordingly, when an employer adopts a high school diploma requirement for a job that also "screens out' an individual who is unable to graduate due to an ADA ­covered learning disability, the employer is prohibited from applying that standard unless it can demonstrate that the diploma requirement is job related and consis­tent with business necessity. This showing cannot be made, however, if the functions in question can easily be performed by someone who does not have a diploma.

Moreover, even if the diploma requirement is job related and consistent with business necessity, the employer may still need to determine whether an applicant whose learning disability prevents him from meeting the requirement can perform the essential functions of the job, either with or without a reasonable accommoda­tion. This may be accomplished by considering the applicant's relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions.

“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 application,” the letter states. The employer, however, is not required to prefer the applicant with a learning disability over other better qualified applicants.

The EEOC’s informal discussion letter is neither an official opinion of the agency nor is it a new interpretation of the law.  Like all EEOC informal discussion letters, the letter simply applies the existing standards under the ADA and the EEOC’s regulations.  The letter was intended to explain how the ADA applies when any job requirement excludes someone with a disability from a job.

This is also not the first time that a high school diploma requirement has been questioned as a possible violation of employment discrimination law.  The U.S. Supreme Court decided in 1971 that a high school diploma requirement was discriminatory because it had a disparate impact on African Americans who had high school diploma rates far lower than whites in the relevant geographical area, and because the requirement was not job related for the position in question and consistent with business necessity.  Griggs v. Dukes Power Co., 401 U.S. 424 (1971).  Additionally, in 2003 the EEOC brought suit on behalf of an employee with an intellectual disability who was fired from her job as a nursing assistant when the employer adopted a high school diploma requirement even though she successfully performed her job duties previously.  The employer settled with the EEOC.

So, what do employers do going forward?  First, understand it is not illegal for businesses to require a high school diploma.  However, an employer may have to allow someone who says that a disability has prevented him/her from obtaining a high school diploma to demonstrate qualification for the job some other way.  This may include considering work experience in the same or a similar job, or allowing him/her to demonstrate performance of the job’s essential functions.  The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that he/she has a disability and that the disability actually prevents him/her from meeting the high school diploma requirement. Second, the EEOC’s letter does not mean that the employer must hire applicants with learning disabilities.  The employer may still choose the best qualified person for the job.  The employer does not have to prefer the applicant with a disability over someone who can perform the job better.  Finally, as with all job requirements, it is important to track the hiring process to ensure that your otherwise neutral policies are not having a disparate impact on a protected classification.