- The Washington Times - Monday, January 2, 2012

The Obama administration is floating the idea that requiring a high-school diploma for a job can be an illegal act of discrimination. No wonder employers are refusing to hire.

An “informal discussion letter” from the Equal Employment Opportunity Commission (EEOC) posted Dec. 1 argues that people with learning disabilities who don’t obtain diplomas face discrimination if businesses use the diploma as a way to screen job applicants. The EEOC says this is a violation of the Americans with Disabilities Act. Faced with having committed this crime, employers will only be safe if they “can demonstrate that the diploma requirement is job-related and consistent with business necessity.”

Part of the problem is knowing what a high-school diploma actually equips graduates to do. The public-education system is more concerned with turning out a student with politically-correct attitudes and an inflated sense of entitlement rather than relevant job skills. Requiring an applicant to have a diploma is simply a means of identifying people who have demonstrated the ability to show up. Most employers would probably have a hard time articulating exactly what they expect when they require a diploma, much less be able to convince a skeptical bureaucrat that it’s “consistent with business necessity,” especially when “necessity” is defined by the government.

The EEOC posits that even if a company can convince the government, after much time and expense, that a diploma requirement is necessary, “the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation.” If a business owner cannot demonstrate and document that he went through this analytical process for every applicant who doesn’t have a diploma and who claims to have a learning disability, then the business is in jeopardy.

After presenting its convoluted argument, the EEOC notes, “The employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.” However, a person who has a diploma and isn’t hired has no legal recourse, while the purportedly learning-disabled nongraduate has legions of bureaucrats and government lawyers ready to make life difficult for the small-business owner who has the impertinence to judge them “less qualified.”

This EEOC discourse is particularly ill-timed. The glut of unemployed and discouraged workers places the least qualified at an even greater competitive disadvantage. The November seasonally-adjusted unemployment rate for people without high-school diplomas was 13.2 percent, and 8.8 percent for those with diplomas. There are ample numbers at the low end of the education spectrum looking for work, but this new EEOC thinking will make life even harder for them as businesses weigh whether considering new hires is worth the risk. Legal fees to meet such arcane compliance requirements takes funds that otherwise could be invested in job creation.

On Dec. 15, the EEOC announced the launch of a small-business task force to try to assist corporate compliance with ever-expanding, more complex and more threatening federal regulations. Business owners should be afraid - the federal task force is coming to help.

The Washington Times

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