The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with disabilities. The act was amended by the ADA Amendments Act (ADAAA) of 2008 with final regulations being issued in March 2011. A significant change in the ADAAA was an expanded definition of “disability.”
For an impairment to be considered a disability under the pre-amended ADA, it had to prevent or severely restrict a person from performing activities central to most people’s daily lives. With the enactment of the ADAAA and its subsequent regulations, it is now much easier for an impairment to be considered a disability. To qualify as a disability, the impairment is only required to substantially limit one major life activity with life activities including reading, concentrating, communicating, working and thinking.
In November 2011, the Equal Employment Opportunity Commission (EEOC) issued an informal discussion letter regarding their interpretation of disability and employer requirements under the ADA. The letter addressed the question of whether an employer could violate the ADA by requiring that employees possess a high school diploma to qualify for a job when the applicant was unable to earn a high school diploma due to a learning disability. The EEOC’s answer was yes.
Under the ADAAA regulations, qualification standards, employment testing and other selection criteria violate the ADA if two things are true:
- An employer requires that the standards or testing be met in order to qualify for a job, AND
- The standards screen out individuals with a disability
The exception to the rule is that if an employer can show that the standards are job related and consistent with a business necessity it will not be considered as violating the ADA.
In the case of a high school diploma requirement, the EEOC is of the opinion that an ADA violation could occur when an employer requires that a job candidate possess a high school diploma if:
- An employer requires a high school diploma for a job;
- An individual who has a learning disability that prevents him or her from graduating from high school is screened out because he or she does not have a high school diploma; AND
- An individual’s learning disability is considered a “disability” for ADA purposes
The ADA would allow the high school diploma requirement to stand as long as it is related to the job and consistent with business necessity. However, even this exception is overridden if the essential functions of the job could be performed easily by someone without a high school diploma or the candidate shows he can perform based on prior job performance of demonstration to the potential employer. Essentially, the EEOC interpretation of the ADA translates as follows: if certain qualifications or tests are required to obtain a job, to withstand challenge they must be absolutely necessary for the employee to be able to perform the job.
This “all inclusive” definition of disability provides a great deal of uncertainty to employers. With the expansive definition of what is considered a disability potentially attacking job requirements that were previously acceptable, employers now face having to review and redraft job descriptions and position requirements to avoid or defend potential challenges.
- Job qualifications, requirements and testing should be related to the job the candidate is expected to perform and consistent with the needs of the business. In other words, if you need the skill or qualification to do the job, leave it in and if not, consider removing it.
- If a candidate or employee discloses a disability, have steps in place to handle the situation. Disclosure of a disability does not always automatically require an accommodation. It does start a due diligence requirement
- Train your HR Staff so that if an applicant discloses he or she has a disability your staff knows how to handle the situation.