Is it discrimination for an employer to require job applicants to have a high school diploma?

 

This morning I was listening to the morning show on 97.3 on my way to the office, and there was a segment about The Great Academy, a charter school where students of all ages can earn their high school diploma. This school is apparently so popular that there’s a waiting list and a lottery to get in! A representative of the school was discussing the importance of a high school diploma during a job search, and to prove her point, she said that the school was recently hiring a receptionist. They received something like 175 applications for one position, and she said they didn’t even look at the resumes of people without high school diplomas.

Alarm bells went off in my head when I heard that, because I had recently read a letter that the Equal Employment Opportunities Commission (the “EEOC”) had sent to employers, warning them about discrimination against job applicants without high school diplomas. The EEOC is a section of the government that enforces Federal laws against discrimination in the workplace. Many questions are raised by the letter, such as: is it illegal for an employer to require job applicants to have a high school diploma? (No.) Does an applicant have a claim for discrimination if they were denied employment because they did not have a high school diploma? (No, unless they have a learning disability that prohibits them from obtaining a high school diploma). And, is it illegal discrimination to summarily reject applicants who do not have high school diplomas? (According to the EEOC’s letter, probably.)

The EEOC’s letter, which was posted on the EEOC’s website on December 2, 2011, essentially said that requiring a high school diploma from a job applicant might violate the Federal Americans with Disabilities Act (the “ADA”). The letter also stated that an employer may require a high school diploma if the diploma is “job-related for the position in question,” and if it is “consistent with business necessity.” Employers may be in violation of the ADA if they “screen out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability.” Employers must determine whether job applicants whose learning disabilities kept them from earning diplomas can perform the essential job functions, with or without reasonable accommodation.

So, while there is no doubt that a high school diploma is valuable in a job search, and that many employers require it for certain positions, employers must be careful not to discriminate against people with learning disabilities. If an applicant is denied a job based on a disability, the employer could be liable for discrimination charges under Federal law. (New Mexico also has a Human Rights Act that prohibits an employer from refusing to hire an applicant based on a disability). The EEOC letter is just an “informal discussion letter” that doesn’t have any weight under the law, but it will undoubtedly play out in future litigation, and I’m interested to see what will happen with these cases. In the meantime, based on the EEOC letter, potential employees with learning disabilities should be aware that they may have a cause of action against employers who discriminate on them based on their lack of a high school diploma. And employers should be aware that they could be liable if they screen out job applicants who have learning disabilities, whether or not a high school diploma is a requirement for the job position.

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