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GRAY: EEOC undermining education

- - Tuesday, June 12, 2012

Whatever else he said in his news conference on the economy last week, President Obama did acknowledge that the government must take care to avoid any policy that "further crimps the desire of companies to hire more people." If the president really wants to end anti-employment policies, the best place to start would be his own Equal Employment Opportunity Commission.

The EEOC exists to guard against discrimination in the workplace. As Justice Clarence Thomas, a former EEOC chairman, once said, "In a perfect world, you don't need EEOC [but] this is not a perfect world." Of all the federal agencies that deserve our support, "EEOC is at the top of that list."

Unfortunately, a recent memo released by the EEOC raises serious doubts about the agency's current policies. According to its attorneys, companies risk federal prosecution under the Americans with Disabilities Act if they seek out job applicants with high-school diplomas.

More specifically, the EEOC attorneys assert that a company should not screen out applicants without high school diplomas, unless the company is ready to prove that the diploma requirement is consistent with "business necessity." And even then, the company also must prove that an applicant without a diploma actually lacks the skills necessary to carry out the job's "essential functions." The legal problem, the EEOC says, is discrimination against people with learning disabilities.

This astonishing requirement places an enormous burden on employers, who would either have to stop screening on the basis of diplomas, or go to great pains to prove that each applicant without a diploma is unqualified.

For example, an employer would have to investigate each job applicant to ascertain, on a case-by-case basis that may have to include a trial work period, whether the applicant can carry out the job's "essential functions." After going to the trouble of figuring that out, an employee no longer has any need to use the diploma as a proxy.

The EEOC lawyers' policy does not just hurt employers; it undermines the nation's commitment to education. A major reason for a student to stay in school is to improve his or her job prospects. If diplomas are suddenly irrelevant to hiring decisions, then at least some students will drop out of school far too soon. We should be increasing the prestige of graduating from high school, not diminishing it, or more will use the excuse of a learning disability - which has no clear, defined limits - to stop studying.

If the Obama administration lets this policy stand, its effects may be felt far beyond just the Americans with Disabilities Act; it could undo an important part of the Civil Rights Act of 1991.

Among other things, the 1991 act prohibits employment discrimination except in cases of "business necessity" - that is, the very same phrase in the Americans with Disabilities Act, at the center of the EEOC opinion letter.

This is no coincidence - the 1991 act borrowed the language directly from the ADA, in large part to avoid the pre-1989 EEOC bias against diplomas. If the EEOC goes forward with redefining "business necessity" as requiring individual proof that a high-school dropout cannot perform a specific task, then it will give rise to a new wave of litigation under the Civil Rights Act - not to prevent real discrimination, but to punish employers who use diploma requirements in good faith to find the best man or woman for the job. The result will be fewer, not more, high school graduations.

We have been here before. In a 1971 case called Griggs v. Duke Power, the Supreme Court opened the door to EEOC rules discouraging diploma requirements under the Civil Rights Act of 1964. In 1989, the court wisely pared these rules back, striking a much more appropriate balance. The court's decision two years ago, in Ricci v. DeStefano, vindicated once more employers' right to use tests and other standards to find the best person for the job. The EEOC should not now set back the clock.

C. Boyden Gray served as White House counsel in the administration of President George H.W. Bush and as U.S. ambassador to the European Union under President George W. Bush.