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EEOC Bars Certain Job Requirements by Employers

February 8, 2012

From SBAM’s national affiliate, NSBA:

On Nov. 17, 2011, the Equal Employment Opportunity Commission (EEOC) Office of Legal Counsel issued an “informal discussion letter” stating that an employer requiring high school diplomas would be unlawful under the Americans with Disabilities Act. They cited such a requirement as having a disparate impact on the learning disabled unless the employer can demonstrate that the diploma requirement is job related and consistent with business necessity.
Most recently, in January 2012, the EEOC adopted as policy–quite under the radar–that a high school diploma requirement would constitute discrimination on the basis of national origin under the Civil Rights Act of 1964.

NSBA opposes this move as it will lead to needless, expensive and damaging litigation, have an adverse impact on small businesses and employment levels as well as discourage young people from pursing educational attainment.

There is no credible evidence that small businesses discriminate against those without high school diplomas when the skills that high school graduates possess are not relevant to the job. Doing so would deprive an employer of many good potential hires and raise their costs. Businesses should be left free to decide what level of educational achievement is necessary for their employees to discharge their job requirements.

Most jobs in a modern economy require the ability to do arithmetic, read, understand instructions and solve problems. A high school diploma is a reasonable indicator that a person possesses these qualities. Usually, a person who has earned a high school diploma will perform these tasks better than a person without one. A high school diploma is also an indicator of the person’s ability to stay on task, complete projects and accept instructions.

It will undoubtedly spawn an army of new consultants helping businesses figure out who has these skills without requiring a high school diploma and force them to spend time and money demonstrating to the satisfaction of the EEOC and some prospective jury that the job actually did require these skills. Those businesses that don’t spend the time and money to hire consultants, consult their attorneys and put a nice “diploma requirement compliance notebook” on their shelf documenting the math, reading and problem solving requirements of every job will be putting themselves at risk of losing a lawsuit.

If the logic of the EEOC position is extended to college degrees, then in many cases that requirement will disappear as well. This will discourage people from finishing high school or college since it will become widely known that employers cannot generally require diplomas. Thus, the policy can be counted on to discourage education. Educational attainment is not an inherent or immutable characteristic. It is something that someone works at and achieves to learn and to earn a credential. It is something we want to encourage, not discourage. It is something we should wish to reward.

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