Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.
Questions addressed to Ms. Lindeman may be addressed in this column.
Hiring and the Law
By Devora L. Lindeman, Esq.*
Question: Is there any problem requiring a high school diploma as a basic requirement for all jobs in my company?
Answer: This is another situation where the answer is a very lawyerly—maybe. If an employer imposes a job requirement that is not actually required for the job, that requirement could be challenged as discriminatory on a number of fronts. There’s a famous employment law case decided by the U.S. Supreme Court that determined that a power company requiring a high school diploma for higher paying jobs had an adverse impact on African-American employees who, at that time, were less likely to have high school diplomas than White employees. Thus, any African-American applicant was shunted into low paying jobs, without an opportunity for advancement due to the high school diploma requirement. In that case, the company could not demonstrate that there was any actual relationship between the diploma and the ability to do the job. Thus, the requirement was found to be discriminatory and in violation of the law.
Any requirement imposed by an employer needs to actually be job related. If challenged, the company will need to demonstrate a business reason for the selection criteria. There may be situations where a high school diploma can be justified as a job requirement. On the other hand, in other situations, such justification may not exist.
Recently, the Equal Employment Opportunity Commission (EEOC) (the federal agency that handles employment discrimination complaints) determined that a high school diploma requirement also could violate the Americans with Disabilities Act (the “ADA”), because that requirement could screen out certain people with learning disabilities who were unable to earn a high school diploma. Unless the employer could demonstrate that the high school diploma requirement was truly related to the ability to perform the job, that requirement could be found to be discriminatory.
That does not mean that an employer has to hire an applicant with a learning disability. Rather, all applicants with the basic requirements should be considered—and the same requirements can apply to applicants with learning or other disabilities. If an applicant is disabled, companies are legally required to consider whether the person can perform the job “with or without reasonable accommodations.” A reasonable accommodation is something reasonable that the employer can provide to assist a disabled employee to perform his or her job. However, such accommodations need not be provided if they cause an undue hardship on the company. Thus, even though companies are not required to hire disabled applicants, and can apply the same job-related application standards, companies cannot create artificial barriers (like a high school diploma in this case) that tends to screen out potentially qualified applicants with disabilities.
Often employers use a high school diploma requirement as a substitute for other factors – the ability to see a project through to completion; a level of maturity; ability to follow directions and comply with requirements, etc. However, people could graduate high school and not have any one of these characteristics. Conversely, people could have dropped out of high school for one reason or another, yet be able to demonstrate each and every one.
Employers would be prudent to identify the actual requirements and expectations of the successful candidate for a job, and then set their hiring criteria around those requirements that can be shown to be needed to perform the job.
Again, to answer your question—maybe. However, it is very unlikely that a business will be able to justify a high school diploma requirement for every single position.
*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law. These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice. Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com. She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.
© 2011 Greenwald Doherty. May not be reprinted without permission.
As the law varies in each area, please check with an attorney to ensure you are applying these tips within the law.
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