Thursday, January 05, 2012

And I went to high school because...?

I have never been a big fan of the Americans With Disabilities Act of 1990 (ADA). As usual, it was seemingly passed by Congress and signed by President George H.W. Bush with seemingly the best of intentions. But as laws like this often demonstrate, the unintended consequences of legislation is an afterthought, or is not considered at all.

Very quickly, the ADA was used by ambulance-chasing lawyers to extort and shake down businesses that had the slightest violations of the law - whether it be a bathroom sink that was a few inches too high, or a step that blocked wheelchair access to an insignificant section of the establishment. Not to mention the fact that while the ADA was meant to stop workplace discrimination against handicapped employees, all the law did was to unintentionally encourage employers to not hire handicapped workers to begin with.

Now we have a new reason to despise the ADA. Apparently, the law is being violated when an employer requires a high school diploma. I will give you a link to a newspaper article about the particulars, but you really need to read the wording of the actual policy letter posted on the website of the Equal Employment Opportunity Commission (EEOC). This is freedom and prosperity-snuffing bureaucracy at its finest:
Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

Thus, 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 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.
So, the high school diploma requirement is only a violation of the ADA if the requirement has nothing to do with the job duties. Right? Oh, wait, the letter goes on:
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. [Yeah, right!]
The EEOC lawyer takes his time with the legalese, but he finally gets around to essentially saying that if the job applicant had some sort of learning disability in high school, you can't require a diploma from him whether it is related to the job or not.

Oh, but worry not! The letter ends with this meaningless statement:
We hope this information is helpful. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.

Sincerely,

/s/

Aaron Konopasky
Attorney Advisor
ADA/GINA Policy Division
It may not be an official opinion of the EEOC, but I think we are versed well enough with our Imperial Federal Government that when they "suggest" that you do something, you damned well better do it. For example, the government still insists that we pay our income taxes voluntarily. Hmmm... just watch what will happen to you if you volunteer not to pay them.

In the meantime, a proclamation like this from the EEOC is like chum for those sharks with law degrees who see a whole new lawsuit industry popping up that is just waiting to be exploited.

"If a nation expects to be ignorant and free... it expects what never was, and never will be." -Thomas Jefferson

4 comments:

Darren said...

The intent was reasonable. The application and abuse has been horrendous.

Tracie said...

And you know what is said about reasonable (good) intentions...

Anonymous said...

I always used to warn my students that there was no special ed in the real world. Apparently, I was wrong!

Heather said...

Hi!
My name is Heather and I work for Worth Ave. Group. We’re currently holding a contest for K-12 teachers to win grants for their schools, and iPads or iPods for their classrooms. If you’re interested in participating, feel free to email me or visit the link I’ve posted below.
Have a great day!
http://www.worthavegroup.com/giveaway/
voteforteachers@worthavegroup.com