By: Judge Ruth B. Kraft, Esq.
In late 2011, the Equal Employment Opportunity Commission (EEOC) opined that an employer’s use of a requirement that employees have a high school diploma might well violate the Americans with Disabilities Act (ADA), if the requirement excludes individuals with learning disabilities. In particular, the EEOC indicated that if such a requirement excludes disabled individuals who could not complete their high school educations because of learning disabilities, then the employer must be able to show that the requirement is job-related and consistent with business necessity. The EEOC also suggested that the employer may have to waive the requirement if the disabled individual can show that he can perform the essential functions of the job.
Truthfully, this stance is nothing new. In 1971, the Supreme Court, in Griggs v. Duke Power, 401 U.S. 424, found that a high school diploma requirement was discriminatory because it had a disparate impact on African Americans whose graduation rates were far lower than those of whites in the relevant geographical area and because the requirement was not job related for the position in question.
Pursuant to the EEOC’s interpretation of the ADA, a qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the particular job’s essential functions. But, even when this threshold is met, the employer must determine whether a reasonable accommodation would allow the disabled individual to perform the job. For example, the employer must consider the applicant’s work history or allow him to demonstrate the ability to perform the job’s essential functions during the application process. But, the EEOC has also pronounced that an employer is not obligated to hire the learning disabled applicant over others who are better qualified.
What does this mean to employers, as a practical matter? First, recognize that, notwithstanding the ADA, you are not required to eliminate educational requirements. Second, recognize that whatever standards you do impose must be job-related and consistent with business necessity and, if so, be prepared to consider any reasonable accommodations that could enable a disabled applicant to perform the job functions. Taking these steps will help you ensure that your selection criteria are fairly applied and will help prevent ADA claims.
Contact Jennifer Kirschenbaum, Esq. at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.