The start to a new year means a time of change for many employers. This year, however, employers are facing added uncertainty in light of an informal discussion letter issued by the Equal Employment Opportunity Commission. In that letter, the EEOC inserted an additional dimension into the already-challenging pre-employment inquiry and applicant screening process by taking the position that an employer’s high school diploma requirement might violate the Americans With Disabilities Act. In particular, the EEOC explained that an across-the-board diploma requirement might unlawfully “screen[] out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability.” Thus, according to the EEOC, an employer may not adopt a high school diploma requirement “unless it can demonstrate that the diploma requirement is job related and consistent with business necessity.” Moreover, even if an employer can make that showing, “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.”

Although the EEOC’s informal discussion letter does not carry the force of law, employers should be cognizant of the EEOC’s position on this issue when drafting and implementing pre-employment interview questions and other requirements in the applicant screening process. Employers should evaluate their existing inquiries and policies in light of this and other pre-employment guidelines propounded by the EEOC and consult an attorney with any questions or concerns.