On December 2, 2011, the EEOC posted an “informal discussion letter” on its website.  The letter was in response to an issue involving individuals who are unable to earn a high school diploma because of certain learning disabilities and who therefore are ineligible for jobs that require a high school education.  According to the EEOC, a qualification standard – including a high school diploma requirement – that screens out individuals on the basis of a disability must be job related and consistent with business necessity, or such standard may violate the Americans with Disabilities Act.

A qualification standard is “job related and consistent with business necessity” if it accurately measures an applicant’s ability to perform the fundamental responsibilities of the job in question.  However, that measurement is simply the first of two steps.  Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with an accommodation.

That means that, for instance, if an employer requires a high school diploma as a baseline for hiring, and that baseline screens out an individual with a learning disability, the employer must fulfill both steps of the process in order to comply with the ADA.  Specifically, it first must demonstrate that a high school education is a job related requirement for the particular job, and that the essential functions of the job cannot be effectively performed by someone without a high school diploma.  It must then go one step further, and determine whether the individual applicant whose learning disability kept him or her from obtaining a diploma can perform the essential functions of the job, with or without a reasonable accommodation.  If that particular applicant is able to perform the essential functions of the job, despite the inability to meet the qualification (high school diploma), the employer cannot use the lack of diploma to screen out the disabled applicant from the applicant pool.

While this rationale was set forth in an “informal” letter from the EEOC to an employer and does not have the force of law or regulation, it is worthy of notice.  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.


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