In an informal discussion letter, , the EEOC said that using high school graduation as an automatic cut off for a job could lead to a situation where persons with disabilities are able to successfully claim that the requirement is unlawfully screening them out from the position since for a variety of reasons some persons with disabilities simply cannot obtain the high school diploma. This letter was expanded upon in a recent question-and-answer guidance, .

The question is whether the EEOC has gone too far. An argument can be made that it has.

EEOC in their informal discussion letter based their decision on the Code of Federal Regulations. The applicable Code of Federal Regulations say that selection criterion that screen out individuals or class of individuals on the basis of disability must be job-related for the position and consistent with business necessity. It also says that a qualification standard is job-related and consistent with business necessity if it accurately measures the ability to perform the jobs essential functions (fundamental duties). Finally, even where a challenged qualification standard, test, or other selection criterion is job-related and consistent with business necessity, it screens out a person on the basis of disability, the employer must also demonstrate that the standard or criterion cannot be met and the job cannot be performed with a reasonable accommodation. From this, the EEOC letter concludes that using high school graduation as a requirement for certain jobs may unlawfully screen out persons with disabilities. Therefore, the employer should figure out another way to ensure that all persons have a right to access that job.

My thoughts are as follows:

1. There can be no quibble with the regulations cited by EEOC. Regulations and rules promulgated by federal agencies or state agencies go through a very specific commenting process before becoming finalized. As such, once they are finalized they become part of the legal landscape and courts have to take them very seriously, assuming those regulations are within the authority of the agency in the first place. This particular discussion letter from the EEOC and its subsequent question-and-answer guidance are not regulations of any sort. Accordingly, the courts have almost complete flexibility as to how persuasive such a letter may be when reviewing a case. This flexibility is even more so if an argument can be successfully made, which we will see is possible in this case, that the agency has exceeded the authority of the law in its position.

2. The EEOC focuses on the essential functions of the job and whether a high school degree is necessary to perform them. However, the EEOC does not seem to be paying as much attention to the complete definition of otherwise qualified under title I of the ADA. In order to be protected under the ADA, you both have to have a disability and be otherwise qualified. For purposes of title I, otherwise qualified defined as where a person with a disability satisfies the requisite skill, experience and education requirements (emphasis added), of the position and can with or without reasonable accommodation perform the essential functions of the job. 29 C.F.R. § 1630.2(m). Clearly, from the EEOC’s own regulations, education can be an essential eligibility requirement.

3. If the EEOC is saying that an essential education requirement really should be essential, then there is no problem with that. That is much the same as saying you shouldn’t have a 60 words per minute typing speed requirement when 45 words per minute will do. Therefore, an employer would be well served by analyzing their jobs to ensure that a high school degree is indeed necessary for the jobs that the employer demand such a degree for.

4. It is curious that an individual with a disability would find it impossible to achieve a high school diploma. If reasonable accommodations are being made under title II of the Americans With Disabilities Act or the person is subject to the Individual Disabilities Education Act, one wonders why the accommodations would not be available so as to enable a person with a disability to get that high school diploma. Unless, it is a situation where even with accommodations under whatever law is applicable (ABA, 504, IDEA), the person still could not receive the high school diploma (a person with intellectual disabilities perhaps), in which case the diploma granting authority would be under no obligation to grant it.

5. It is hard to fathom why it is the employer’s responsibility to require the applicant to demonstrate that disability actually prevents the applicant from meeting the requirement. After all, the entities giving students high school diplomas are subject to federal antidiscrimination laws and they should be making the necessary accommodations to ensure that that student is given the best opportunity to obtain that diploma. This leads to another question which is whether the EEOC is making new law here. They claim that they are not. However, an argument can be made that they are. That is, if an employer reasonably believes that a high school diploma is an essential requirement for the particular job, asking the employer to ignore that requirement is akin to asking that employer to modify or waive an essential eligibility requirement, which they do not have to do. For example, case law exists saying that a governmental entity does not have to change the essential eligibility requirements for its programs to accommodate a person with a disability. Such a change would fundamentally be altering the nature program and is not required by the Americans with Disabilities Act.

6. The reference to the nursing assistant case in the EEOC question-and-answer is interesting because it creates the question as to why the individual referenced could not get the GED degree even with reasonable accommodations.

7. In determining essential functions of a job, the EEOC says in the regulations that they will look to several factors, including the employer’s judgment. One wonders why insisting on an educational credential would not be within the employer’s judgment.

8. Perhaps my problem is more with language than anything else. For example, if the EEOC were to say that where education is not an essential requirement to perform the essential functions of the job, then the employer cannot insist on the education qualification being met, that would be one thing. In essence, in that situation, it would be akin to waving a nonessential function of the job as discussed in paragraph 3 above. However, if the EEOC is saying that education may not be an essential eligibility requirement of the job, that is a whole different matter.

So what does this all mean?

1. An employer should evaluate whether the jobs requiring a high school diploma do indeed actually require a high school diploma for the essential functions of the job to be performed. If those jobs do not require high school diploma to perform the essential functions, then it is recommended that the employer get rid of the high school diploma requirement or treat the high school diploma requirement as something that could be satisfied in another way (akin to waving a marginal function of the job). If a high school diploma is required, then the employer is faced with a choice. Do they want to assume that the EEOC view here will carry the day or do they want to argue that a high school diploma is an essential eligibility requirement and it therefore, is not something that the ADA mandates an employer waive. If the employer does not adopt the EEOC view, there may be litigation that follows. However, the employer could well be within their rights under the law to take this position especially if they have done an analysis and have determined that a high school degree is necessary for the essential functions of that particular job to be performed.