Lexology (03/22/12)

New guidance from the U.S. Equal Employment Opportunity Commission indicates that employers could be in violation of the Americans With Disabilities Act if they require a high school diploma for certain jobs, particularly if they screen out applicants whose learning disability made it impossible for them to obtain a diploma and they cannot demonstrate that a diploma is job-related and necessary to the business. In a November 2011 letter, which is clarified in the new guidance, the EEOC said employers should determine whether applicants with learning disabilities could perform the job’s essential functions with reasonable accommodation. The guidance says employers should permit these individuals to demonstrate in a way other than with a high school diploma that they qualify for the position. However, employers considering multiple applicants do not have to give preference to the applicant with a disability if another applicant could do the job better.