EEOC Informal Discussion Letter Reminds Employers To Review Qualification Standards

On December 2, 2011, the Equal Employment Opportunity Commission (EEOC) posted an important “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 the standard may violate the Americans with Disabilities Act (ADA).

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.

According to Liz Washko, a shareholder in Ogletree Deakins’ Nashville office: “Employers may use a high school diploma or college degree as a screening requirement to ensure a certain caliber of applicant, even where those achievements may not be critical or even related to the job at issue. The EEOC’s `informal discussion letter’ on the topic of high school diplomas does not do much more than reiterate the ADA’s requirements for qualification standards and apply that to the high school diploma criteria.”

Washko continued: “The letter does, however, highlight how that ADA criteria may apply in the `real’ world and as to a criteria that many take for granted is an acceptable minimum level of achievement. It is difficult for an employer to determine whether an applicant has failed to obtain a high school diploma due to a learning or other disability or due to other factors, such as lack of initiative, failure to persevere, aversion to hard work, etc. This letter serves as a reminder to employers to periodically review their job descriptions, postings and criteria to make sure they are: (1) accurately and completely defining the essential functions of their various jobs; (2) properly identifying the minimum and desired qualifications and criteria; and (3) ensuring that the qualifications and criteria are, in fact, related to the essential functions of the job.”

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