Can employers require job applicants to have a high school diploma?
By Jim StergiosJanuary 2nd, 2012
BNA, a subsidiary of Bloomberg L.P., is a great source of reporting on legal and regulatory issues that matter to businesses. In mid-December BNA shared the following item, which will be a shocker to most employers:
Under the Americans with Disabilities Act, an employer’s requirement that applicants have a high school diploma must be job-related and consistent with business necessity, the Equal Employment Opportunity Commission stated in an “informal discussion letter” posted on its website Dec. 2.
I don’t know of many employers who think twice about requiring a high school diploma. The EEOC letter “does not constitute an official opinion of the commission,” but rather is an indication that at a date not too far in to the future the EEOC will take up this question and make a ruling on whether requiring all job applicants to have graduated from high school is a violation of the ADA.
The letter goes on to note that
if a high school diploma requirement is job-related and consistent with business necessity, but effectively screens out a disabled applicant, the employer still may have to determine whether an individual applicant can perform the essential functions of the job with or without reasonable accommodation.
The EEOC further suggests that the onus will be on the employer to show that job applicants
cannot perform the job’s essential functions with or without a reasonable accommodation, even if he or she does not meet a standard that is job-related and consistent with business necessity, the commission added.
We will have to see how the federal commission will move ahead, but the ramifications of prohibiting such “milestone” job requirements will be many:
- Perhaps the inclusion in the workplace of disabled individuals who may either sense a barrier or who are excluded because of the requirement;
- An unhelpful signal to those who are struggling in high school that the effort may not be necessary; and
- An entirely new industry for lawyers to expand into.
What do you see as the impact?
Crossposted at Boston.com’s Rock the Schoolhouse. Follow me on twitter at @jimstergios, or visit Pioneer’s website.
Entry Filed under: Education
1 Comment Add your own
1. Ed Cutting | February 13th, 2012 at 5:38 pm
I wonder if it is this simple. I fear not.
Many states are introducing what I call — for the lack of a more neutral term — “premium” diplomas — diplomas that indicate that the student has passed certain courses and/or taken extra courses and/or done thing that aren’t required for the student who is getting the regular diploma. Some of these have fancy titles like Arizona’s “Grand Canyon Diploma” — and they clearly are intended to be a way of raising standards. (Some states, e.g. Florida, are also introducing the International Baccalaureate which complicates things further — particularly when they include it with a 3-year high school degree.)
The “struggling student” isn’t relevant here because in most cases he isn’t identified as SPED and thus doesn’t come under the protections of ADA. (He well may be, and pressure on schools to provide appropriate education to students at all levels and not just the bottom would be a good thing, but I digress.) Further, the students in most “alternative education” programs are explicitly *not* SPED, they put the kids there because they don’t qualify for SPED.
In most states — I have heard so many conflicting versions that I have given up on trying to figure out what *really* happens in Massachusetts) — a SPED student, pursuant to ADA and IDEA, has an IEP (Individualized Educational Plan) which essentially is a contract that if the student does what is in the plan, the student gets a high school diploma — but a regular one.
Is EEOC going to say that employers can’t distinguish between the plain diplomas and the “premium” diplomas? Remember that if the DSM-V comes out as it currently is written, it is going to define almost everyone with *some* sort of mental illness which thus would put the entire population under the protections of ADA. (The larger implications of the DSM-V are an issue in and of themselves but I digress…)
But is the intent to quietly make the “premium” diploma moot?
The true wild card is where would EEOC (and or litigants) go with such an EEOC ruling? On the one hand, it could require lawsuit-shy employers to require the two-year Community College degree for jobs that now only require the HS Diploma, such things exist elsewhere in the world, Switzerland requires formal training to be a cashier in a store.
On the other hand, would this be the end of the _Gregg v. Power Systems_ decision — that the racial discrimination case that threw out management testing in favor of requiring applicants to have a BA/BS in *something*, from *somewhere* and thus forcing a lot of kids to go to college that didn’t need to be there.
The case for EEOC to exclude the college degree is far stronger than excluding the high school diploma because IDEA does not apply to higher education. There are no IEPs, no obligation to provide the education (as in K-12), no obligation to modify the requirements – the opposite actually applies.
On the one hand we have Obama and others wanting to force every 18-year-old to go to college, on the other hand, well, they don’t all belong in college……
This could be interesting…. Really interesting if the higher education bubble starts to implode as a lot of people (myself included) believe it soon will…..
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