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Can I Require a High School Diploma?
By VICKY BROWN
Well, if the question is – does Federal law the prohibit you from requiring a diploma – as with most other things HR – it’s just not as simple as that.
First off, you really do have to be sure that a diploma is an absolute must have to do the job; and that it’s job related and is a business necessity. Being able to prove all that can be a tall mountain to climb. For instance, is a diploma the only way that candidate could have gained the necessary skills to do the job.
Maybe it’s a proofreading job – well, even if they don’t have a diploma, maybe they simply have very high functioning grammar and language skills (by the way, something we see very little of these days….but I digress). And maybe they honed those skills in another way – maybe they taught English to non-English speaking students. Or maybe they worked as an assistant to a book editor. Or maybe their parents were simply sticklers for using proper grammar.
It doesn’t matter – the fact is that you would be hard pressed to prove that a diploma is the only way to meet the requirements of the proofreading job.
And if you get it wrong, well then that’s when the feds are absolutely going to have something to say about it all. Specifically, you may find yourself on the wrong end of a discrimination lawsuit under Title VII of the Civil Rights Act and/or the American with Disabilities Act.
The Equal Employment Opportunity Commission (you know, the EEOC) has given some specific guidance on the matter. They said (and I quote) “a high school diploma requirement is discriminatory under Title VII if it has a disparate impact on a protected group and is not job-related and consistent with business necessity.” un-quote.
“…you really do have to be sure that a diploma is an absolute must have to do the job; and that it’s job related and is a business necessity. Being able to prove all that can be a tall mountain to climb“
So what is this disparate impact thing? Well, that’s when a rule, or a policy seems like it’s neutral (so saying everyone has to have a diploma seems fair because it’s applying to everyone, right?). But then when you dig a little deeper, that policy or rule actually results in a disproportionate impact on people in a protected class.
One really good example of this is when the EEOC sued an employer for firing a nursing assistant. Now this nursing assistant had been performing her job successfully for four years when the company implemented a high school diploma requirement. But you see, she couldn’t get her GED because of her disability. So, that resulted in a disparate impact on those who were unable to meet the requirement due to their disability.
Now again – before anyone starts writing me letters. Keep in mind that the company also couldn’t prove that the diploma requirement was job related and consistent with business necessity. And it also seems they didn’t consider any other way someone might get the experience or skills they felt they needed.
The diploma question has caused such an uproar that in Nov of 2011 the EEOC put out an FAQ series to help clear things up. One of the big takeaways for me was that while employers aren’t prohibited form requiring a diploma – if someone is without a diploma (because their disability prevented them from getting one) then it’s on the company’s shoulders to give the candidate another way to prove they’re qualified for the position.
And that brings me to the recommendation we most often give to our clients. When you’re putting together a job posting or a job description with qualifications – the phrase “or equivalent experience” can be your best friend.
Whether you’re an entrepreneur jumping into a leadership role, a seasoned business pro with new HR responsibilities, or just starting your HR career – we’ve got the right path to guide you through your HR hurdles.
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Think about it – is it really about that piece of paper, or what you’re thinking that piece of paper says about the person’s abilities and experience. Well, if that can be demonstrated in some other way – why not let the other way stand. Go after the outcome, and stop getting caught up in the details. Because, aside from hanging you up, those details could spell real trouble for you and your business.
And before I leave you with the impression that it’s all about the ADA, don’t forget that I started with Title VII. The most famous case around diplomas and racial discrimination is the Duke Power Station case in North Carolina (and yes, we’re getting in the way back machine – it happened in the 1950’s). But it was the case that went all the way to the Supreme Court, and that ended up directly defining the diploma thing.
One day, Duke management decided that you needed a high school diploma to transfer to a non-labor department. Of course, the non-labor departments paid a better wage, and come on, it was a Steam Station – so being in a non-labor department was much safer, and less back breaking work. So these jobs were highly coveted.
The problem comes in when you realize that in 1950’s North Carolina, twice as many white males held diplomas as black males. They simply didn’t have the same opportunities. So that all resulted in disparate impact. And Duke couldn’t (or didn’t) prove a diploma requirement was related to the job. So, in a phrase – they lost.
So, again – how can you avoid getting caught up in a ‘Duke’ situation. It’s all about that little phrase ‘or equivalent experience’. Remember it, and use it liberally. It can go a long way in keeping you on this side of line.
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