The United States Equal Employment Opportunity Commission (EEOC)’s Office of Legal Counsel recently issued an informal discussion letter in response to an inquiry as to whether the Americans With Disabilities Act (ADA) prohibits 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 inquiry was apparently prompted by concern that some individuals cannot obtain a high school diploma and, therefore, cannot obtain jobs requiring a high school diploma because their learning disabilities caused them to perform unsatisfactorily on end-of-course assessments.

In the discussion letter, EEOC noted 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.  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.

As a result, it is EEOC’s position that, if an employer adopts a high school diploma requirement for a job, and that requirement effectively “screens out” individuals who are unable to graduate because of an impairment that meets the ADA’s definition of “disability,” the employer may not apply the standard unless the employer can demonstrate that the diploma requirement is job related and consistent with business necessity.  The employer will not be able to make this showing, for example, if the job’s essential functions can be performed by someone who does not have a diploma.

The EEOC also noted that, even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting the diploma requirement can perform the essential functions of the job, with or without a reasonable accommodation.  It may do so by considering the applicant’s 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 employer is not required to prefer the applicant with an impairment over other applicants who are “better qualified.”