The title of this blog may not be technically correct, but it is close to the truth.
The latest EEOC informal opinion letter addresses a question about whether students in Tennessee who have learning disabilities may be required to take certain tests as part of a requirement for a high school diploma. Inexplicably, the letter veers off course and the EEOC has taken the opportunity to issue a pronouncement for employers who require applicants have high school diplomas. This informal opinion letter is presumably meant to provide guidance but it falls woefully short of that goal.
I have to admit that this informal opinion letter is old news since it was issued on November 17, 2011 and has appeared in countless blogs and new articles ever since. When it first came out, I read it like everyone else did and planned a blog entry. I got stuck when I tried to explain what this meant for employers.
The informal opinion letter sets forth the general requirements of any testing or standard used by employers — is the test or standard consistent with a business necessity? As the EEOC sets forth, an employer cannot require applicants have a diploma unless the employer can demonstrate that the skills required to obtain a diploma "accurately measures the ability to perform the job’s essential functions."
So far, so good. Then I got to the next part of the letter. The EEOC went on to state that even if an employer can prove that the diploma is necessary to prove an applicant can perform the essential functions of the position, the employer may still need to make a reasonable accommodation for an applicant with a learning disability who was unable to obtain a diploma.
My confusion comes in because the ADA has been interpreted to state that an employer does not have to remove the essential functions of a position in order to accommodate an employee. If an employer can demonstrate, as set forth in 29 CFR §1630.10, that having a high school diploma directly relates to whether an employee can perform the essential functions of a job, then how is the employer going to accommodate a learning-disabled applicant who cannot get a high school diploma?
A more practical problem for employers is how will they know if an applicant does not have a diploma because of learning disability and thus may require an accommodation. It is not as if an employer can ask that question during an interview.
Although the letter is not helpful for employers in the way the EEOC intended, it is helpful to signal a new enforcement policy that the EEOC may be applying. It also should signal to employers that they should be very cautious before requiring any degree or diploma for a position.
(photo courtesy of gadgetdude)