The Equal Employment Opportunity Commission recently responded to a question from Tennessee about a requirement that students with learning disabilities take “gateway tests”.  These tests would allow students to achieve the equivalency of a high school diploma.

The gist of the question revolved around making a high school diploma a job requirement.  Is this a requirement that would be in opposition to ADA?

We’re trying to figure out what sort of job would make that a prerequisite.  If you’re applying to be an engineer, an employer might expect some proficiency in math.  If you’re applying to be a garbage collector, an employer might expect you to be able to lift a waste bin.  If you’re applying to be a lion tamer, an employer might expect you to have some experience working with animals.

The response from the EEOC was that “If an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability’, the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity.”

The ADA act requires that an employer make a ‘reasonable accommodation’ for a candidate to perform a job task.  If a candidate with a learning disability can demonstrate that they can perform a job’s essential function, either with or without a reasonable accommodation, then a requirement of a high school diploma would be exclusionary.  The employer must demonstrate that a diploma is a “business necessity”.

The definition of disability at the EEOC states, “a person may be disabled if he or she has a …mental condition that …limits a major life activity (…such as learning).”  There are clearly many occupations that would be appropriate for an individual meeting this criteria.

The telling thing about the EEOC response is that it was an “informal discussion letter” and should “not constitute an official opinion of the Commission.”  We kind of think that they should have an opinion.  An employer should look first at whether or not a candidate can perform the essential functions of the job.

The piece of paper should be secondary.

Written by VABLN

As a B2B Best Practice resource, The Virginia Business Leadership Network assists employers in recognizing the many benefits of including individuals with disabilities in their workforce.