This may not be new information for all of you, but from reviewing several employers’ applications and new hire processes recently in light of the EEOC’s new Guidance concerning acceptable use of criminal arrest and conviction records, another EEOC landmine employers may be getting ready to encounter is requiring a high school diploma or college degree for jobs which really do not necessitate such levels of education.
For instance, requiring that “all employees” must have a high school diploma or the equivalent (GED) – does the janitor, your maintenance personnel or even every production line member, truck driver and/or warehouse worker really need this level of education to perform his/her job?
The same could be true of requiring a college degree for every salesperson or “any member of management.”
From the EEOC’s perspective, such requirements with no actual job-related basis for the same could violate the ADA because they could exclude those with certain learning disabilities, who, while their disabilities kept them from furthering their education, they do not preclude them from performing the essential functions of the particular job for which they are applying.
This perspective would not restrict you from paying those with a higher level of education more, or even choosing those with more education over those with less in the hiring or promotion process (again, assuming the education has some relationship to the job at issue). However, it DOES preclude blanket requirements for a certain level of education for either “all jobs” or “all jobs at a certain level” when there is no actual relationship to the particular job at issue (i.e., it is really an employer “preference” rather than a true “requirement of the job”).
Sorry to add to your already growing “EEOC landmine checklist” along with all the other recent developments concerning “automatic termination at the end of a leave of absence” policies, “reserving all light duty work only for those injured on the job,” requiring a “full duty” release before permitting employees to return to work, etc. But while you are (hopefully!) revamping your application and new hire process in light of the recent criminal arrest and conviction record Guidance from the EEOC (click here
to review our prior alert concerning this EEOC Guidance), this is another dimension of this process which warrants a closer look.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance. Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.