[I]f an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.
Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.While fortunately not yet legally binding, the argument behind this letter continues a worrying trend of arbitrary government interference in the private sector. However, putting aside the incremental threat of government micromanagement of the economy, this policy has the potential for significant negative economic and social effects.
First, the policy can arguably cause undue economic burdens to employers and restrict their ability to recruit appropriate candidates. The possession of a high school diploma is often used as a filter to screen out less than desirable candidates. While, like any such screen, it will be imperfect—sometimes keeping out good matches and other times allowing bad candidates to move on to interviews or even employment—methods of filtering job applicants allows employers to reduce overhead costs and save resources. Employers will have a much longer and costly hiring process if they are forced to consider every applicant without the ability to employ screening techniques as they see fit.
Likewise, employers will be faced with growing costs related to litigation and preventative legal steps, such as developing rubrics to discern if "the diploma requirement is job related and consistent with business necessity." The policy will open the door to expensive legal battles and direct corporate resources from primary business operations to the legal department.
Such costs will, of course, be passed on to consumers or taken from employees paychecks—results that are not needed during tough economic times. Additionally, higher expenses related to hiring can lead to damage to the job market. Companies will become more hesitant to expose themselves to regulatory action or litigation by quickly entering the job market when, particularly, short-term needs arise. Any job market needs to be largely unencumbered—to facilitate easy hiring and firing and thus allowing employers and employees to rapidly find mutually beneficial arrangements. This policy will have the opposite effect on the job market.
These economic concerns are rivaled by the pernicious implications that this proposed policy has on the value of education. Many opponents cite that this will limit incentives to a high school education. This argument carries some weight. After all, if employers are limited in requiring a high school diploma, students will have less pressure to avoid dropping out. More jobs that do not require a diploma will be available and legal action will always be a viable route.
Inevitably, the social effects of devaluing education could yield unfortunate ramifications—handicapping an already flagging economy and continuing the dumbing-down of our relatively declining pool of human capital. America needs to increase its productivity and human capital; high school education is a first step in this process.
America does not need disincentives to high school education. It does not need to continue providing excuses for people to disavow personal responsibility. Nor does it need to invent ways to try to "protect" Americans against every conceived stroke of bad luck, injustice, or risk. What America needs is to increase productivity, allow economic forces to freely operate, and afford Americans the opportunity to face and overcome challenges—and sometimes also fail.