Last week, the United States Equal Employment (EEOC) answered questions about when requiring a high school diploma violates the Americans with Disabilities Act. The EEOC provided this information because it created confusion last November when it issued an informal letter discussing how the ADA applies to standards for job qualifications.
Specifically, in November 2011 the EEOC issued a letter which indicates that an employer would violate the ADA if it rejected a job candidate because he does not have a high school diploma if a disability prevented the job candidate from graduating from high school, unless the employer proves the diploma requirement “is job related and consistent with business necessity.” The letter also indicates that an employer would “not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.” The EEOC received substantial backlash to its position, including many who claimed it had created a disincentive to graduate from high school.
The EEOC’s article last week clarifies that the ADA does not prohibit employers from requiring job applicants to have high school diplomas. Rather, under limited circumstances a company might have to allow a job candidate to show he is qualified for the job if a disability made prevented him from graduating from high school. For example, an individual who could not graduate from high school because of a disability might prove he is qualified for a job by showing his work experience in similar jobs.
The EEOC’s article also makes it clear that employers are not necessarily required to hire a job candidate who is disabled. Companies have the right to select the job candidate who is best qualified for the job.
What is still unclear is whether the employer or the employee has the burden of proof when a company rejects a job candidate whose disability prevented him from graduating from high school. The EEOC’s November letter indicates that employers must demonstrate that a high school diploma is necessary for the job. However, its February article indicates that the disabled employee has to prove he is qualified for the job even though he did not graduate from high school. It seems likely the EEOC originally intended to place the burden on the employer, but changed its mind in response to the backlash it received last November.
The law in New York and New Jersey prohibits employers from creating artificial barriers to reject disabled employees candidates. If you have been denied a job or fired because you are disabled even though you can perform the essential functions of the job, your employment law rights may have been violated. Contact Rabner Baumgart Ben-Asher & Nirenberg to learn how we can help.