EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA & Title VII: High School Diploma Requirement and Disparate Impact
June 11, 2012
This is in response to your letter dated February 10, 2012, objecting to the EEOC's position that applying a high school diploma requirement is unlawful under Title VII of the Civil Rights Act of 1964 (Title VII) where it has a disparate
impact on the basis of race, national origin, color, sex, or religion, unless the employer can demonstrate that the requirement is job related for the position in question and consistent with business necessity. See Employment Rights of
Immigrants Under Federal Anti-Discrimination Laws, http://www.eeoc.gov/eeoc/publications
/upload/immigrants-facts.pdf (last visited Feb. 28, 2012). You also objected to the EEOC's assertion in a November 17, 2011 informal discussion letter (November 17 letter) that applying a high school diploma requirement is unlawful under the Americans with Disabilities Act of 1990 (ADA) if it screens out or tends to screen out an individual with a disability or a class of individuals with disabilities, unless the employer can demonstrate that the requirement is job related for the position in question and consistent with business necessity. See ADA: Qualification Standards; Disparate Impact (Nov. 17, 2011), http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html; see also Questions and Answers about the EEOC and High School Diploma Requirements, http://www.eeoc.gov/eeoc/newsroom/wysk_high_school_ada.cfm (last visited Feb. 28, 2012). The letter further stated that, even if the employer can demonstrate that a high school diploma requirement is job related and consistent with business necessity, some individuals who cannot meet the requirement because of a disability may be entitled to demonstrate their ability to perform the essential functions of the job by alternative means, as a reasonable accommodation. See 42 U.S.C. §§ 12113(a), 12112(5); 29 C.F.R. § 1630.9; 29 C.F.R. pt. 1630, App. §§ 1630.9, 1630.10.
You maintain that the consequence of EEOC's positions, both of which you characterize as new, is that employers would be forced to drop high school diploma requirements and hire consultants to develop new ways to assess applicants for desired skills. You further assert that employers will now be forced to retain counsel, draft new human resources directives, and train their managers in order to comply with these requirements. Finally, you suggest that EEOC's positions will cause individuals to forgo obtaining a high school education.
As explained below, EEOC's positions under Title VII and the ADA are not new, but reflect well-settled law.
EEOC's position that a high school diploma requirement is discriminatory under Title VII if it has a disparate impact on a protected group and is not job related and consistent with business necessity dates back to a Supreme Court case decided more than 40 years ago. The employer in Griggs v. Duke Power Company, 401 U.S. 424 (1971), had adopted a high school diploma requirement for all positions in four of its five departments without "meaningful study" of its "relationship to job-performance ability," based on the untested belief that doing so would "improve the overall quality of the work force." Griggs, 401 U.S. at 431. The Court decided that the requirement was unlawful because it had a disparate impact on African Americans, who had high school diploma rates far lower than Whites in the relevant geographical area, and because the requirement was not job related for the positions in question and consistent with business necessity. The Court stated:
The evidence . . . shows that employees who have not completed high school . . . have continued to perform satisfactorily and make progress in departments for which the high school . . . criteri[on is] now used. . . .
. . . .
The facts of this case demonstrate . . . the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality.
Griggs, 401 U.S. at 431-33. The courts and the EEOC have applied the holding in Griggs consistently, and Congress confirmed it when it amended Title VII in the Civil Rights Act of 1991. 42 U.S.C. § 2000e-2(k).
The November 17 letter stated that, if a high school diploma 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. It also stated that, if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation, despite not having the diploma.
Since 1990, when it was passed by Congress, the ADA has contained specific language which says that prohibited discrimination includes "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria . . . is shown to be job-related for the position in question and is consistent with business necessity." 42 U.S.C. § 12112(b)(6). The EEOC regulations cited in the 2011 letter implemented this statutory provision and were adopted in 1991. See 56 Fed. Reg. 35734 (July 26, 1991). A high school diploma requirement clearly is both a "qualification standard" and a "selection criterion" within the meaning of both the statute and EEOC's regulations.
EEOC directly addressed the application of the ADA to a high school diploma requirement a decade ago when it brought suit on behalf of an employee with an intellectual disability who was fired from her job as a nursing assistant in a residential care facility when the employer adopted a requirement that nursing assistants have high school diplomas. She had worked successfully in the job for four years and had several times tried to obtain her GED, but did not succeed because of her disability. Her GED instructors offered to work with the employer to find an alternative way to assess the employee's ability to do the job, but the employer refused. In this case, the employee's ability to do the job could easily have been assessed by alternative means, namely by considering the fact that she had performed the job successfully for four years before the requirement was adopted. The employer settled the case with EEOC in early 2003.
In the vast majority of cases, an employer will be able to apply a high school diploma requirement without violating the ADA. To challenge the requirement under the ADA, an applicant who lacks a high school diploma must first prove that a disability actually prevented her from obtaining a diploma. An individual who, for example, has a learning disability that does not prevent graduation from high school, but who did not graduate because she decided not to complete course requirements, cannot challenge an employer's high school diploma requirement under the ADA.
If an applicant can demonstrate that a disability is the reason she cannot meet a high school diploma requirement, the employer may defend the requirement as job related and consistent with business necessity. Your letter identifies some of the considerations that would help to establish this defense. For example, an employer may offer evidence of a correlation between holding a high school diploma and performing the duties of a particular job that requires specific mathematical or reading skills. The key is whether a high school diploma requirement is "job related for the position in question and consistent with business necessity" under the ADA.
As explained in the November 17 letter, even where a high school diploma requirement is job related and consistent with business necessity, an individual who did not graduate from high school because of a disability may be entitled, as a reasonable accommodation, to demonstrate the ability to do the job by some means other than producing a high school diploma. However, employers are never required to provide reasonable accommodations that would impose undue hardship (significant difficulty or expense). Thus, for example, if an employer can show that the cost of hiring an expensive consultant or otherwise assessing a job applicant's qualifications would be significant as compared to the employer's resources, the ADA would not require the alternative assessment as a reasonable accommodation. Moreover, an employer would not be required to hire the applicant with a disability if another applicant is better qualified (e.g., can perform the job more accurately or efficiently).
We hope this information is helpful. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.
Christopher J. Kuczynski
Assistant Legal Counsel
ADA/GINA Policy Division