In December 2011, the Equal Employment Opportunity Commission issued an informal statement of opinion that employers who require a high school diploma for a job, without clear business necessity, may be violating the Americans with Disabilities Act (ADA).

This practice may be seen as discriminating against applicants who are unable to earn a high school diploma because of a learning disability.

The EEOC maintains that a job qualification standard, such as a high school diploma, which disproportionately screens out applicants with disabilities, must be proven to be “job-related and consistent with business necessity.”

There are two steps to complying with these criteria.

First, to be job-related and consistent with business necessity, a qualification standard must accurately measure applicants’ ability to perform fundamental job responsibilities.

Once that is established, the employer must also show that each individual applicant who does not meet the standard is not able to perform the fundamental job responsibilities – even with a reasonable accommodation.

In other words, even if the employer is able to show that a high school diploma is job-relevant in most cases, the employer should still try to establish whether a particular individual whose learning disability keeps him from earning a high school diploma can do the job with or without a reasonable accommodation.

This may be established by looking at the applicant’s relevant work history, including recommendations, and/or by allowing them to demonstrate their ability to do the essential functions of the job. If the applicant can perform the requirements of the job, with or without reasonable accommodation, the applicant cannot be excluded from the job based on not having a high school diploma.

While the above opinion from the EEOC is only an “informal discussion letter” and does not have the force of law, prudent employers will take heed so as not to become the first test case.