Boyden Gray writes in the Washington Times about a memo by the United States Equal Employment Opportunity Commission. The memo reportedly asserts that employers who require applicants to have a high school diploma may be discriminating against those with learning disabilities, in violation of the Americans With Disabilities Act.
To the extent that the diploma requirement disproportionately excludes the learning disabled, EEOC’s position is that employers can defend the requirement only by proving that it is consistent with “business necessity” and that an applicant without a diploma actually lacks the skills necessary to carry out the job’s “essential functions.”
This astonishing requirement places an enormous burden on employers, who would either have to stop screening on the basis of diplomas, or go to great pains to prove that each applicant without a diploma is unqualified.
For example, an employer would have to investigate each job applicant to ascertain, on a case-by-case basis that may have to include a trial work period, whether the applicant can carry out the job’s “essential functions.” After going to the trouble of figuring that out, an employee no longer has any need to use the diploma as a proxy.
The EEOC lawyers’ policy does not just hurt employers; it undermines the nation’s commitment to education. A major reason for a student to stay in school is to improve his or her job prospects. If diplomas are suddenly irrelevant to hiring decisions, then at least some students will drop out of school far too soon. We should be increasing the prestige of graduating from high school, not diminishing it, or more will use the excuse of a learning disability – which has no clear, defined limits – to stop studying.
The EEOC’s position on high school diplomas is part of its larger war on standards. For example, the EEOC has challenged employer policies that screen out applicants who have been convicted of felonies and serous misdemeanors, as well as policies that screen out applicants with very poor credit histories from positions with financial responsibilities.
The EEOC would argue that employers can still use such criteria; they just have to demonstrate that they are job-related and consistent with business necessity. But its approach removes the right to make these decisions from employers and places them in the hands of federal judges — with the employer, not the EEOC or private plaintiff, bearing the burden of proof. Federal judges are less qualified than employers to make these decsions, and some have strong political biases.
A justification for court intervention would exist nonetheless if there were reason to believe that the employer has discriminatory animus. But in these kinds of cases, there is no claim of intentional discrimination. Indeed, it is effectively conceded that no such intent exists; if it did, the EEOC would allege intentional discrimination, rather than (or in addition to) “disparate impact” discrimination.
Liberals are pursuing a war on standards, and not just in the employment context. But high standards are a hallmark of personal and national excellence. A war on standards, whatever its motivation, poses a threat to our national well-being.
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