December 8, 2011

EEOC ISSUES PRIVATE LETTER ON HS DIPLOMAS & THE ADA

by Art Gutman Ph.D., Professor, Florida Institute of Technology

On 10/9/09, a letter written to the EEOC asked the following question:

[Does] the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), prohibit the State of Tennessee from requiring students with learning disabilities to take “Gateway tests” or “end-of-course assessments” in order to receive their full high school diplomas?

The EEOC noted it had previously responded to a similar inquiry in December 2-10 and published a response that was previously written and published (finally) on 11/17/11. That letter may be accessed on the EEOC website at the following link:
http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html.

In the letter, the EEOC notes that under 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. ….. 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.

Thus, for example, for (1) a person with a learning disability who (2) does not graduate because of that impairment, and who (3) meets the ADA’s definition of disability, and who is (4) screened out because of the diploma requirement, the EEOC suggests that there is no showing of job relatedness and consistency with business necessity “if the functions in question can easily be performed by someone who does not have a diploma.”

The EEOC also notes that even if the diploma requirement meets the job relatedness standard, the employer will, in addition, have to do an individualized assessment of an applicant by “considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process.” However, the EEOC also notes there is no requirement to prefer the qualified applicant with a learning disability to other applicants who are better qualified.

In other words, adverse impact in the ADA differs from adverse impact in Title VII. In Title VII, the job relatedness defense ends the case (unless there is proof of alternative equally valid selection criteria with less or no adverse impact). In the ADA, proof of job relatedness is a prerequisite to an inquiry into what a specific individual can or cannot do with or without reasonable accommodation.

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