While the National Labor Relations Board has no real competition as the most employer-antagonistic governmental agency over the last year, the Equal Employment Opportunity Commission (“EEOC”) certainly hasn’t been a wallflower during that period, either.

As most employers probably know, late last year, the agency caused quite a stir when it issued an informal discussion letter through its Office of Legal Counsel addressing whether a high school diploma requirement for a job potentially violates the Americans With Disabilities Act (“ADA”).  That letter – after purporting to summarize and apply long-standing statutes and regulations – went on to set forth the EEOC’s position as follows:

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 the showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

The letter further noted that the employer may still have an obligation to determine whether a particular applicant whose learning disability prevented him or her from securing a high school diploma can perform the essential functions of the job with or without reasonable accommodation. The Office of Legal Counsel gave examples in the letter, such as considering relevant work history and allowing the applicant to demonstrate an ability to perform the essential functions during the application process.

Following the understandably quick flood of calls and letters to the EEOC from the employment community in response, the agency released a “Questions and Answers” news release to “clarify” the letter, while at the same time pointing out that neither it nor the Q & A press release was anything more than a restatement of long-standing law and policy.

In issuing its clarification and Q & A, the EEOC flatly denied having “just made it illegal” for businesses to require a high school diploma.  The EEOC did note that an employer “may have to allow that someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualifications for the job in some other way.”  The EEOC also denied granting ADA protection to individuals who decide not to graduate from high school, and even felt it was important to make clear that it was not creating a disincentive to finish high school.  In doing so, it pointed back to a United States Supreme Court decision 40 years earlier noting that a high school diploma requirement could be discriminatory because of a disparate impact on African-American applicants.

And to think – according to what the EEOC said after causing this stir – all the agency claims to have been trying to do in the first place was point out that the ADA would protect someone with a disability which makes it impossible for him or her to secure a high school diploma.

Nonetheless, and notwithstanding the EEOC’s efforts to “clarify” its informal discussion letter, the point of that letter and the follow-up clarification should not be lost on HR professionals.  The issue of high school diploma requirements was – and remains – on the EEOC’s radar, which makes an investigation more likely if a complaint is submitted by a dissatisfied job applicant.  Worse, the informal decision letter and clarifying Q and A also provide a road map for job applicants who lack a high school diploma for any number of reasons to circumvent that disqualifying fact by claiming disability status.

This situation puts employers in a tough spot.  Under the EEOC’s interpretation of the ADA, the employer must decide whether to actually attempt to enforce the high school requirement on job-related business necessity grounds, or to ignore the employer’s posted qualification in the interest of avoiding EEOC’s scrutiny on the issue.  As often is the case in the world of employment law, employers need to weigh the risks of each choice – and not hesitate to speak with qualified legal counsel for guidance in doing so.

Tom Kleeh concentrates his practice in labor and employment law. Mr. Kleeh has experience defending employers in protected class litigation and claims in discrimination claims against employers based upon age, race, sex, disability, religion and national origin as well as claims of sexual and other forms of unlawful harassment. He has defended claims for breach of contract, retaliatory discharge, defamation, invasion of privacy, and other employment-related torts.
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