A recent EEOC discussion letter opines that adopting education requirements for jobs may screen out certain applicants, and that employers shouldn't apply the standard unless they can show that the requirement is job-related. While including education requirements in job listings isn't likely to become illegal, HR professionals may want to rethink asking about candidates' educational backgrounds.
Education requirements have long been a common, almost standard, part of job postings. But have you ever stopped to consider the lawfulness of this particular prerequisite? The Equal Employment Opportunity Commission has.
A recent EEOC letter opines that, under the Americans with Disabilities Act, "if 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 condition 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."
Further, the letter adds, employers shouldn't list a high-school diploma as a job requirement if the job functions could be performed by individuals without one.
The recent rumblings from the EEOC reflect the organization's focus on "what it considers systemic discrimination, as opposed to isolated civil-rights violations," says David James, shareholder and chair of the labor and employment practice group of Minneapolis-based law firm Nilan Johnson Lewis.
"Consistent with this initiative, the EEOC has taken a particular interest in hiring criteria, from credit checks to arrest and criminal records to education requirements," he says. "The EEOC views such screening tools as having a disparate impact on minority applicants and other protected classes, and hopes to reduce or even eliminate the use of these criteria."
While it's unlikely that including education requirements in job postings will become illegal, the EEOC letter may spur more employers and HR professionals to re-examine why they include them, says James.
"For positions that don't justify such an education requirement, HR leaders should consider why they previously sought such information.
"Expecting a particular degree is often proxy for expecting an applicant to have a particular skill set, knowledge or experience," he says. "Eliminating an education requirement would not preclude HR professionals and hiring managers from asking an applicant questions designed to reveal whether he or she has the desired attributes."
Most federal courts likely wouldn't look kindly at an EEOC interpretation that amounts to a complete ban on including educational requirements in job postings, says Mark Spring, a Sacramento, Calif.-based partner in the employment law firm of Carothers DiSante and Freudenberger.
Still, a closer focus on the necessity of education requirements can affect the way HR professionals evaluate job candidates, he says.
In addition, while removal of such requirements may aid individuals without high-school diplomas, it may have the opposite effect on other would-be employees who are already struggling to find jobs.
"It would tend to hurt recent college graduates and those with limited job experience, as many of those candidates have little to support their employment marketability beyond their education," says Spring. "This group as a whole is already having a very difficult time finding employment, resulting in unusually high unemployment and underemployment rates for those in their 20s."
As it stands now, HR professionals should take a closer look at just how critical a candidate's education may be to performing the job, says John B. Flood, an attorney with employment law firm Ogletree, Deakins, Nash, Smoak & Stewart in Washington.
"HR should consider whether the requirement is job related and consistent with business necessity," he says.
"In other words, [HR and hiring managers] should be able to demonstrate the importance of the requirement to the successful performance of the essential or key duties of the job for which it is used, and also that the requirement helps at some level to indicate an applicant's potential success or lack of success in the position," he says.
To make sure this can be done, HR must consider -- on a position-by-position basis -- why the educational requirement is important, and should be prepared to explain its relevance to the job, Flood says.
"As an HR leader, ask yourself, as well as key management officials who will be involved in the hiring process, to explain the relationship or nexus between the two. While that will take some time to do, it's better to do so now, versus having to try and explain it for the first time to the EEOC in response to a charge of discrimination, or in a deposition during a lawsuit," he says.
HR leaders should also question whether requiring a certain level of education actually strengthens the applicant pool for a given position, adds James.
"Ask questions such as: 'Is there anything about this job that requires a high school diploma or other degree?' " he asks. "Does an education requirement help identify candidates who would be successful in this job? Does an education requirement have a distinct purpose, or is including it in the posting merely the status quo?
"If HR professionals undertake this analysis before posting an open position and decide to include an education requirement, the answers to these questions will go a long way toward justifying a challenged criterion," James says.
Ultimately, "the right solution to this issue will depend on the specific facts of the position at issue," adds Flood. "But I think that considering these questions carefully will help ensure that the employer can hire those who are best qualified to fill vacant positions without being unnecessarily fearful of a potential charge or lawsuit down the road."