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December 6, 2011

Under the Americans with Disabilities Act, an employer’s requirement that applicants have a high school diploma must be job-related and consistent with business necessity, the Equal
Employment Opportunity Commission stated in an “informal discussion letter” posted on its website December 2nd.

At the same time, the agency said in the letter signed by Attorney Advisor Aaron Konopasky, if a high school diploma requirement is job-related and consistent with business necessity, but effectively screens out a disabled applicant, the employer still may have to determine whether an individual applicant can perform the essential functions of the job with or without reasonable accommodation.

The letter, dated Nov. 17, notes that it is an “informal discussion of the noted issue and does not constitute an official opinion of the Commission.”

The letter clarified an earlier response to an inquiry as to whether requiring Tennessee students who are learning disabled to take “Gateway tests” or “end-of-course assessments” in
order to receive a high school diploma would violate the Americans with Disabilities Act. EEOC earlier had referred the inquiring party to the Education Department.

But the commission clarified its answer in light of the party’s statement that students whose learning disabilities prevent them from obtaining high school diplomas will be unable to
obtain jobs for which a diploma is a requirement.

A qualification standard is job-related and consistent with business necessity under the ADA “if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties),” EEOC explained. Even if this test is met, it said, where the standard screens out individuals on the basis of a disability, employers must show that it cannot be met and the job cannot be performed even with a reasonable accommodation.

“Thus, if an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual 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. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma,” EEOC said.

Further, to satisfy the ADA the employer must show that a job applicant with a disability cannot perform the job’s essential functions with or without a reasonable accommodation, even if he or she does not meet a standard that is job-related and consistent with business necessity, the commission added.

“If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant,” EEOC said. “However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.”  12.06.2011

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