Last November, the EEOC responded to the State of Tennessee's question about whether requiring employees have a high school diploma might violate the ADA. According to staff of the EEOC Office of Legal Counsel, the answer is "yes":
[S]ome individuals cannot obtain a high school diploma, and therefore cannot obtain jobs requiring a high school diploma, because their learning disabilities caused them to perform inadequately on the end-of-course assessment.As the American Spectator's Ross Kaminsky observes:
Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). . .
Even 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. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. 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.
The confused thinking from EEOC seems to overlook the fact that an inability to graduate from high school probably represents something important about a person and that, from an employer's point of view, the reason someone didn't graduate usually is not and need not be important. Even if it were of modest importance, making a hiring process more complicated is an unjustifiable expense for most companies. . .The predictable effect: corporate counsel already are advising companies to re-evaluate whether a high-school diploma requirement can be legally justified before replacing vacant positions or publicizing opportunities for new employment openings.
For employers, they may fear being forced to hire a stupid or incompetent employee because that person claims his inability to graduate was due to a disability. Perhaps the EEOC thinks we all live at Lake Wobegon, where all children are above average.
Educationally, it diminishes the incentive for marginal students to finish school, something which would not only be good for their brains but is also important to show troubled or only modestly intelligent kids that persistence is a valuable trait and strategy for life.
And just as there is a cottage industry of doctors who will sign a medical marijuana prescription for any reason at all as long as the "patient" has cash, we will see a cottage industry of psychologists, therapists, and psychiatrists who will certify a slacker or a moron (sorry, EEOC, those people really exist) as disabled so that he can be forced down the throat of an unwilling employer.
Just what we need: more uncertainty prompting additional disincentives to create the "jobs, jobs, jobs" this Administration elsewhere seeks. I can't wait to see how President Obama blames this on the "do-nothing Republican Congress."