On November 17, 2011, the Equal Employment Opportunity Commission issued an informal discussion letter addressing how the Americans with Disabilities Act (ADA) applies to qualification standards for jobs. This particular question arose in the context of individuals with disabilities who cannot obtain high school diplomas because their disabilities prevent them from passing the requisite tests. In turn, this prevents them from obtaining jobs that require high school diplomas.
As the EEOC explained:
[u]nder the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.
In sum, an employer needs to be certain that a job truly requires a high school diploma and should not impose an arbitrary high school diploma requirement. If the essential functions of the position can be performed by an individual without a high school diploma, the employer may be in trouble.
Even if a high school diploma is job related and consistent with business necessity, if an applicant informs an employer that she does not have a diploma because of a disability, then she is entitled to a determination of whether she can perform the essential duties of the job with or without accommodation. This can be accomplished through prior relevant work experience or by being provided the opportunity to show they can perform the job. Before taking these steps, an employer is permitted to request appropriate documentation of a disability that prevented the applicant from obtaining a high school diploma.
Despite this, an employer does not have to prefer the disabled candidate over a better qualified non-disabled candidate. The best-qualified candidate may still be chosen.
--- Partner Elaine L. Fitch contributed this blog post.