CWS 3.0: March 28, 2012

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When Requiring Diplomas Violates the ADA

Requiring a high school diploma may in some circumstances be considered a violation of the Americans with Disabilities Act, according to guidance released by the The U.S. Equal Employment Opportunity Commission, according to the latest issue of the Legs and Regs Advisor, produced by Staffing Industry Analysts and the law firm Little Mendelson. According to the Advisor, the EEOC recently posted a Q&A on its website to clarify when an employer potentially violates the Americans with Disabilities Act by requiring employees to have a high school diploma.

Requiring a diploma is not in itself a violation. However, according to the EEOC, if that requirement screens out someone “who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job-related and consistent with business necessity.” While employers may continue to require high school diplomas, they may have to allow individuals who claim to have a learning disability that prevents them from earning a diploma “to demonstrate qualification for the job in some other way.”

Even if the diploma requirement is job-related and consistent with business necessity, employers may still have to determine whether a particular applicant whose learning disability prevents him from meeting the requirement can perform the essential functions of the job, with or without a reasonable accommodation.

Notably, the guidance provides that the ADA “only protects someone whose disability makes it impossible for him or her to get a diploma” and “it would not protect someone who simply decided not to get a high school diploma.” Accordingly, an employer would be permitted to require applicants to prove that they have the alleged disability and that the disability prevented them from meeting the high school diploma requirement.

Employers should carefully review positions that require a high school diploma to ensure that the requirement is job related. Likewise, employers should ensure that they do not reject an applicant who failed to obtain a diploma based on a learning disability. 

Also covered in this month’s issue of the Legs and Regs Advisor, which is available to corporate members of Staffing Industry Analysts: 

  • California court finds staffing firm’s arbitration agreement unenforceable
  • California recruiters exempt as commissioned employees
  • Louisiana partners with U.S. Department of Labor to combat misclassification
  • PEO/related entities lawfully separate under Colorado tax law

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