June 11, 2012Client Alert

EEOC Takes Aim at High School Diploma Requirements for Employment as Potentially Disparately Impacting Individuals with Disabilities

In 1971, the U.S. Supreme Court in Griggs v. Dukes Power Company, 401 U.S. 424 (1971), held that a high school diploma requirement imposed by a utility company as a condition of employment was unlawful because it disparately impacted African Americans as contrasted with Caucasians and because the diploma requirement was not related to the jobs in issue. The legal community has always noted that decision as having been the first to recognize and articulate the disparate impact theory of employment discrimination, rather than for the principle that high school diploma requirements for employment may be legally suspect.


The U.S. Equal Employment Opportunity Commission (EEOC), however, recently has taken a position that a high school diploma requirement is, apparently, more suspect today than it was in the past. The theory of liability at issue here is not new; it has been around since Griggs. But the focus on high school diploma requirements as potentially problematic, particularly when it comes to the potential disparate impact of such a requirement on individuals with disabilities, is new.


To the extent a high school diploma requirement is related to the particular job in issue and is “business necessary,” the requirement remains perfectly lawful. Where a job does not really require a high school diploma (or, really, the skills that we still presume are evidenced by such diploma), however, imposing such a requirement can inadvertently disadvantage individuals with disabilities who have been unable to complete high school because of their physical or mental impairments. Moreover, in the event a job applicant with a disability can establish that he or she did not complete high school because of that disability, an employer may need to make a “reasonable accommodation” exception to the requirement, even where the requirement is job-related and consistent with business necessity. An alternative skills or competencies test to measure the candidate’s qualification for the job, for instance, might have to be considered.


But employers generally should require a high school diploma as a condition of hire only when performance of the job in issue necessitates that a candidate has the skills arguably evidenced by such a diploma. The requirement should not be imposed because “that’s the way we’ve always done it” or because the successful performance of “every job” requires a high school graduate’s skillset. Not every job requires all the skills of a high school graduate, and “that’s the way we’ve always done it” is never a good reason for continuing a practice. 


Employers should review their job descriptions and job criteria to insure that a high school diploma is being required only where the job in issue really requires the skills presumptively reflected by a high school diploma. Managers, supervisors, human resources representatives, and others involved in the hiring process also should be trained to respond lawfully in the event a job applicant offers an excuse for not having a high school diploma, particularly if the excuse is disability-related.
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