Monday, January 02, 2012

What, Exactly, is the News Here?

So I return from my vacation to see lots of chatter about this story regarding an informal EEOC letter. In the letter, Commission staff apparently opine that it might violate the ADA for an employer to apply a high-school graduation requirement that screens out applicants with disabilities if that requirement is not job-related and consistent with business necessity. Following on the letter, management lawyers' blogs and newsletters say that it represents a new and problematic interpretation of the law. The Washington Times then writes a story about it, in which one lawyer says that it will give kids less of an incentive to stay in school.

But what, really, is the big news here? It has been clear, at least since the noted Bolshevik Chief Justice Warren Burger wrote the Supreme Court's opinion in Griggs v. Duke Power in 1971, that a high school diploma requirement might violate the employment discrimination laws if it is not supported with a sufficient business justification. And it has been clear since 1990 that the ADA applies a version of the Griggs rule to the context of disability. The ADA explicitly prohibits employers from "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity."  42 U.S.C. 12112(b)(6).  The EEOC letter, as reported by the Washington Times, is simply a straightforward application of these well established principles.  To be sure, these principles are controversial -- and have been since Griggs -- but it's a bit much for lawyers to pretend to experience a shock of surprise at the EEOC's reiteration of them.



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