- The Washington Times - Sunday, January 1, 2012

Employers are facing more uncertainty in the wake of a letter from the Equal Employment Opportunity Commission warning them that requiring a high school diploma from a job applicant might violate the Americans with Disabilities Act.

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.

The “informal discussion letter” from the EEOC said 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.” The letter was posted on the commission’s website on Dec. 2.

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.

Mary Theresa Metzler, a lawyer with Ballard Spahr in Philadelphia, said there may be an “unintended and unfortunate” repercussion of the EEOC’s discussion: “There will be less incentive for the general public to obtain a high school diploma if many employers eliminate that requirement for job applicants in their workplace.”

Officials at the EEOC said the letter in question addressed “a particular inquiry” and disputed that it would have repercussions in secondary education.

“No, we don’t think the regulation would discourage people from obtaining high school diplomas,” said Peggy Mastroianni, legal counsel for the EEOC. “People are aware that they need all the education they can get.”

She said the letter does not offer a new interpretation of the ADA.

Jeanne Goldberg, a senior lawyer/adviser at the agency, said the issue would come up only when high school graduation standards are not related to a specific job.

“This would never arise when the high school diploma is in fact necessary to do a job,” she said.

Ms. Metzler said the policy could lead the EEOC to bring claims against employers or encourage applicants who have failed to gain employment to raise the issue.

“The EEOC may be inclined to test its view on the high school diploma requirement and its impact on the disabled in a court case,” said Ms. Metzler, who is advising clients to “review their job descriptions to determine if a high school degree is truly necessary, or would aid the employee in performing the essential functions of the particular job.

“While such a requirement is routinely included by many employers, a deeper analysis may demonstrate that a lesser educational requirement might suffice,” she said.

Some worry that the EEOC’s letter could place less emphasis on a diploma in the workplace, but the push in Congress has been in the opposite direction. House Republicans sought late last year to reform the federal unemployment-benefit system by requiring recipients of aid who do not have high school degrees to be “enrolled and making satisfactory progress in classes” toward a General Education Development certificate or equivalent.

That proposal was not part of the final deal that Congress approved to extend a payroll-tax holiday for two months, but Republicans say they intend to renew their call for the reform this year.

Some corporate counsels are advising clients to adjust the way they approach the hiring process.

“Employers are wise to evaluate whether a high school diploma really is necessary to perform the essential functions of any job for which it is being required,” the Employer Law Report advised in a blog post by Lisa Whittaker, a lawyer with the Porter Wright firm, which has represented business clients for more than 150 years.

“Even in those situations where the high school diploma requirement can be justified, employers will still need to consider” whether a “reasonable accommodation” could be provided to allow a disabled person without a diploma to perform a given job.

• Dave Boyer can be reached at dboyer@washingtontimes.com.

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