In the latest bit of politically-correct economically-ignorant
insanity to come from Washington, D.C., the Equal Employment
Opportunity Commission (EEOC) — an organization which should (but
won’t) be at the top of any Republican president’s list to
eliminate — has opined that employers may be in
violation of the Americans with Disabilities Act (ADA) if they
require that potential employees have a high school diploma.
The concept is supposedly that an inability to graduate
from high school might be a symptom of a learning disability, and a
disabled person can’t be disadvantaged in getting a job.
The confused thinking from EEOC seems to overlook the fact
that an inability to graduate from high school probably represents
something important about a person and that, from an employer’s
point of view, the reason someone didn’t graduate usually is not
and need not be important. Even if it were of modest importance,
making a hiring process more complicated is an unjustifiable
expense for most companies.
The impact of the EEOC’s “informal
discussion letter” can only be bad for employers and for the
future of high school education.
For employers, they may fear being forced to hire a stupid
or incompetent employee because that person claims his inability to
graduate was due to a disability. Perhaps the EEOC thinks we all
live at Lake Wobegon, where all children are above
average.
Educationally, it diminishes the incentive for marginal
students to finish school, something which would not only be good
for their brains but is also important to show troubled or only
modestly intelligent kids that persistence is a valuable trait and
strategy for life.
And just as there is a cottage industry of doctors who
will sign a medical marijuana prescription for any reason at all as
long as the “patient” has cash, we will see a cottage industry of
psychologists, therapists, and psychiatrists who will certify a
slacker or a moron (sorry, EEOC, those people really exist) as
disabled so that he can be forced down the throat of an unwilling
employer.
The EEOC’s letter says that an employer can only use a
“standard, test, or other selection criteria” to screen potential
employees if the standard is “job related… and consistent with
business necessity.”
More from the letter:
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.
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.
Imagine the growth in the far-beyond-cottage industry of
lawyers suing companies for “discrimination”.
What is an employer to do if his every hiring decision is
subject to EEOC scrutiny and his having to prove (not being given
the benefit of the doubt) that a non-high school graduate is less
likely to do a good job than a graduate? More fundamentally, why
should an employer have to justify his hiring decisions to
anyone?
What does “reasonable accommodation” mean? How much does
the EEOC think a private company should be required to spend to
hire someone with a disability when hiring someone else would not
require such expense? This opinion — indeed this entire agency —
is the ultimate in government having no concept of cost-benefit
analysis, which is the world that the rest of us have to live in if
we’re not to go bankrupt. Alternatively, perhaps they simply have a
truly twisted approach to the value of the “benefits” their tyranny
brings to a select few.
Consider the last EEOC sentence quoted above: “However,
the employer is not required to prefer the applicant with a
learning disability over other applicants who are better
qualified.” This implies that the employer is required to
prefer the applicant with a learning disability over other
applicants who are equally qualified. How is that fair to the
majority of high school dropouts who are not learning-disabled?
Furthermore, given that there can be extenuating circumstances
which cause smart, motivated kids to drop out of school, such as
dire family situations which require their help, it is more likely
for an employer to find a diamond-in-the-rough employee among
dropouts who are not learning disabled than among those who
are.
In short, employers are generally prevented by this EEOC
opinion from considering a high school diploma as a sign of a
qualification for a job. This is, of course, a position that nobody
who understands the real world would ever think
reasonable.
Employers are not tools of the state to be used to achieve
leftist social engineering. They are entrepreneurs who risk their
(or their investors’) money trying to provide goods and/or services
at a profit. Bad employees, a category into which a high school
dropout seems more likely to fit than others might, make that
fundamental task of business much more difficult. One can imagine a
situation in which being forced to take on a bad employee would
remove the financial wherewithal of a small business to hire a
better employee, damaging customers, shareholders, and future
potential growth and hiring.
To be clear, I don’t argue that people without high school
diplomas can’t be good or even great employees. But in businesses
that require a reasonably well-developed cerebrum and a modicum of
discipline, not having a diploma represents a real likelihood of
someone either not being as smart or not being as motivated as
someone who graduated. It’s no surprise that the only group of
Americans who seem to lose jobs or have substantial wage pressures
due to illegal aliens are those without high school diplomas
(though even that relationship is the subject of some debate.) For the
benefit of our nation’s future, there should be the
substantial risk of a substantial, perhaps even life-long penalty
for not finishing school. The last thing this nation needs is a
government policy reducing the incentive to graduate.
The EEOC’s website is full of lawsuits they’ve brought
against private companies for various claimed discriminations,
whether age-based, race-based, or disability-based. It’s as if they
believe their job is to punish companies for not being sensitive
enough to the left’s politically correct but economically ignorant
views about how business works. And when the government is coming
after you, what’s a company to do other than settle, pay a fine,
and allow the government to change their hiring decisions — which
they presumably made in the best interest of
shareholders?
The EEOC is, like the National Labor Relations Board, out
of control. It needs to be stopped, or preferably eliminated. It is
not the government’s job to choose winners and losers among
employees any more than it is to give unions leverage on private
companies. It is time for employers to fight back against the
overbroad interpretations of the ADA, not just because the EEOC and
courts are harming businesses across the country and creating
entire new classes of plaintiffs and low-life attorneys chasing
their next victims, but because the word private in
private enterprise must return to meaning something before our
economic liberty is entirely lost to the do-gooders’
fascism.
