Tuesday, January 3, 2012

Government Questions Employer's Right to Require High School Diploma

Once again the government is slowly pushing its tendrils into the private sector. The Equal Employment Opportunity Commission (EEOC) has recently released a non-binding letter indicating that employers may be in violation of the American Disabilities Act (ADA) if they require a high school diploma as a prerequisite for employment. The letter, which as of now is only an informal expression of the EEOC's position and does not have the force of law, states:
[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.


  1. Always easy to say that when you aren't the poor mentally retarded guy trying to get a job bagging groceries. Guess he just fails at life. Oh well. Screw him right? No one should be protecting Americans who can't protect themselves, right? You are sick and stupid. This is a crappy piece of legislation, I agree. But your argument places the 'business owner' above all other humans and calls every manner of misfortune from blindness to mental defect just factors of laziness.

  2. Josh: The letter is a bit more nuanced than you're letting on. It seems to object to high school diplomas *only when a high-school education is irrelevant to the job itself.* The implication is that there are jobs which someone without a high school education could perform, but which are only open to those with such an education. Wouldn't banning the use of an irrelevant screening method make for a more efficient labor market?

  3. Anonymous, first it isn't a piece of legislation. Its a regulatory letter on policy. Second, it isn't an argument that people should not be protected, nor is it an argument that misfortune implies laziness (such an argument is absurd). It is an argument that restrictions should not be put on the criteria businesses use to determine who they want to employ. Misfortune happens to people all the time, but the government should not be involved in making private citizens (or corporations) be responsible for addressing the misfortune of others. Think if you were a small business owner. Don't you think you'd worry that if you turned down a non-diploma holder, you'd be subject to litigation, if the individual happens to have a disability; even if you expressed no discrimination? That's fair in your mind? Employers can (and sometimes should) help others as they see fit, but that is different from the government getting involved. It also isn't an argument that employers should use high school diplomas as a screening tool or not. I don't think its in anyone's right (or ability) to determine what requirements someone needs to have for any job in the country. I certainly don't think the government should be in that position. That is the argument. Lee, this addresses the nuance that you correctly point to. Can you, or anyone, definitively state whether a diploma is relevant or not for a given job? There are probably innumerable instances, caveats, etc. where it is and others where it isn't. The point is that the government is in no position, nor has the ability, to successfully determine this.

    Where does one draw the line? What about college degrees? What about certain GPAs? Why should law firms be allowed to discriminate against those who aren't able to get accepted into law schools? The fact is that there is a lot of arbitrariness in the world and the government cannot try to solve or fix it all. When it tries to do so it encroaches on our freedoms, it hinders economic efficiency, and in the end it doesn't help people. Government is not always the answer to problems people perceive. The sooner we let go of this mentality the sooner we'll have a stronger society and economy.

  4. I do not have my high school diploma not because of a handicap or laziness. I grew up in an abusive home. I'm not going to get into the details of that, the only reason I said that much is because there are many reasons people don't finish school, not just laziness or having a handicap. I drooped out of school my sophomore year. Helped raise my sister raise her beautiful children and at 19 got my first job. I lied and told them I had a diploma. The reason I'm telling you that I lied is because employers rarely check if you graduated so why even ask or make it a requirement? I worked for that company for 5 years. I started from the bottom worked from the bottom up. I became a supervisor within 2 years. Almost every place I've worked at I stayed for ALEAST 2 years. I know that's not very long, but lazy people wouldn't have held down a job that long. And I haven't lied about my education since my first job, and over half of the jobs I have had I got promoted to a middle management position. I am currently an office manager and I have no high school diploma. I proved I was as smart and capable as a high school graduate. I'm happy that my employers didn't just see that I was a "Drop out" when the saw that I didn't finish school and pass me up for some one that did, and I'm pretty sure that they are too. As a matter of fact one of my old bosses just opened up a new store and asked me if I wanted the management position. I worked hard and was given the opportunity to learn as I worked. I know that there is a lot more opportunities for me if I went back to school and took some collage classes. I actually went and took a test to find out what I needed to do to get my diploma and I passed the test no classes required. Lowest grade was 81. I will go get it when money permits. I feel education is important but not having a high school diploma should not instantly disqualify some one for a job. Do you really think that I should be passed up for a job over some one with a diploma now that you now my story? A diploma does not mean that a some one is smarter or will work harder than some one without a diploma. Do you really think it would be right if an employer of a grocery store gave someone a job over me, just he/she has a diploma? I have 10 years experience and over 5 years I was in middle management!! There are many jobs that require years of school and training and that's great. But a high school diploma? Come on!!! I am a high school drop out and have proven over and over that I am as smart as a high school graduate.
    Josh said what about GPAs, in high school I had a 3.4 GPA. Does it matter now? No.... Collage degree matter? YES!!! For the field that they went to collage for. But not every job that they apply for.

  5. Anon

    It sounds like you have a tremendous success story and are every bit deserving of the positions and job opportunities that you have worked so hard to achieve. None of what I said goes against or argues against what you have achieved, nor do I make the argument that businesses shouldn't hire people like you. In fact, I wish there were more hardworking people like you that took on the responsibility and the ethic you have. Businesses thrive on successful and hardworking employees.

    The argument I am making is not about what businesses should do or who they should hire, but about what the government should not do. I think we will have a more successful economy if businesses (and workers) are free to make employment decisions based on their own criteria and logic. This may not always mean that the "correct" decision is made, but who can ever say what is correct for each and every business and worker? Instead, each should be able to choose his own path. Those that make the right decisions will be successful (as you have), those that don't will be replaced by "better" decision makers.

    You are absolutely right that a high school diploma isn't necessary or even optimal for many jobs, and that hardwork, smarts, and responsibility are more often better characteristics. But let the business owner make that decision not the government. Otherwise we saddle businesses with undue expenses (eg compliance with regulations) that divert money from hiring more workers. That hurts everyone.

    Thanks for your comment



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