EEOC Says Requiring A Diploma May Be Discriminatory
January 4, 2012
Sorry, I’m a little slow on posting this, but the EEOC recently wrote an opinion letter that suggests that requiring a high school diploma as a condition of employment may be discriminatory.
Now as many of you know, I would usually take this opportunity to excoriate the EEOC. However, I’m turning over a new leaf this year and refuse to be drawn into negativity (anyone want to place a wager on how long this will last for?).
ERE’s John Zappe wrote a great post on this topic. See excerpt below.
An “informal discussion letter” just posted to the EEOC’s website says that under certain circumstances, requiring a diploma may run afoul of the Americans with Disabilities Act. If the requirement screens out persons unable to earn a diploma because of a bonafide disability, the employer has to justify the requirement as job-related and consistent with business necessity.
Doing that for some jobs isn’t going to be easy. Employers almost as a matter of routine include at least a high school degree requirement in every job posting, including for janitors and cleaners. The U.S. Labor Department, however, says, “Most building cleaning workers, except supervisors, do not need any formal education and mainly learn their skills on the job or in informal training sessions sponsored by their employers.”
Informal discussion letters aren’t policy. That’s up to the Commission members. However, employment lawyers see the letter as signaling the possibility that the EEOC may be looking to step up its enforcement of other provisions.
Says Proskauer Rose attorney Nigel F. Telman, “I could see them potentially … saying at some point” that a high school diploma requirement “may have a disparate impact on a particular class of people.”
For instance, 87.1 percent of the U.S. population older than 24 has a high school degree. However, only 62.9 percent of Hispanics do. So requiring a degree does have a disparate impact nationally. That alone isn’t illegal. But it does mean you’ll have to justify the requirement as both job related and consistent with business necessity.
If it’s the ADA that’s involved, you’d also have to also establish that with or without an accommodation the disabled person is unable to do the job.
Doesn’t everyone in this country has access to public education? What they chose to do with that access is up to them. I agree that every job should have requirements that correspond to the position, but discriminatory? What on earth is the EEOC thinking? Why not just make it illegal to actually have a degree? I’m sure our kids would love that. I guess they aren’t happy until their relentless policies force everyone into court (or out of business).
So much for turning a new leaf. I couldn’t hold back:)
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