EEOC Discusses How Not Being Able to Graduate from High School Could Be Considered a Disability

Employment Law

EEOC Discusses How Not Being Able to Graduate from High School Could Be Considered a Disability

Jan 3, 2013 | Employment Law

GraduateHat

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:

  1. An employer requires that the standards or testing be met in order to qualify for a job, AND
  2. 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:

  1. An employer requires a high school diploma for a job;
  2. 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
  3. 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.

Practice Pointers

  • 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.

LinkedIn

Follow us on LinkedIn to view the latest blogs from our team.

About – Business Insights

Our business blog focuses on issues affecting Virginia, D.C. and Maryland business owners as well as those in other jurisdictions throughout the country. We provide timely insight and commentary on federal and state rules and how they affect you. If you are interested in having us cover a specific topic, please let us know.

About – Employment Law

As employment law constantly changes, the attorneys at Bean, Kinney & Korman stay up to date on the law as it develops. Our blog topics focus on those changes and what you need to know about them, ranging from severance agreements and the FLSA to social media in the workplace and recent court decisions. If you are interested in having us cover a specific topic, please let us know.

About- Real Estate

This blog focuses on real estate, land use and construction-related topics affecting Virginia and the Washington, D.C. metro area. With topics ranging from contract drafting and negotiation to local and regional land use project updates, the attorneys at Bean, Kinney & Korman provide timely insight and commentary on the issues affecting owners, builders, developers, contractors, subcontractors and other players in the industry. If you are interested in having us cover a specific topic, please let us know.

The Employee’s Handbook to Holiday Work

The holiday season often brings a surge in work hours, especially for those in the retail and service industries. This period, while potentially lucrative for both employers and employees, also brings with it questions about holiday pay, overtime, and legal rights....

NLRB Delays Start Date for New Joint Employer Rule

On October 26, 2023, the National Labor Relations Board (NLRB or Board) issued a new rule, with an effective date of December 26, 2023, establishing the standard for determining joint employer status under the National Labor Relations Act (NLRA). The NLRB’s new rule...