EEOC Legal Counsel "Informally" Opines That Requirement of High School Diploma May Discriminate Against Disabled Job Applicants

Volume 10, Issue 15
December 13, 2011

On November 17, 2011, in response to a request for public comment, legal counsel for the Equal Employment Opportunity Commission ("EEOC") wrote that requiring a job applicant to have a high school diploma may have a disproportionate impact on persons with learning disabilities. In a letter characterized as an informal discussion that does not constitute an official opinion, EEOC counsel noted that such job requirements may single out those persons whose learning disabilities prevented them from passing end-of-course assessments necessary to obtain high school diplomas. Because of the potential for a disproportionate impact on the disabled, EEOC counsel explained that employers bear the burden of showing that such diploma requirements are job related and consistent with business necessity and opined that employers will fail to make such a showing if the job functions at issue can easily be performed by someone who does not have a diploma.

Although the EEOC counsel's letter is non-binding, it highlights the EEOC's increased focus on charges of discrimination filed under the Americans with Disabilities Act of 1990 ("ADA"), as modified by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Therefore, it should be viewed as significant and serve as the impetus for employers to carefully consider all job qualifications and their relatedness to the specific duties and responsibilities of each particular job position.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.