Human Resource & Labor News
www.agc.orgMarch 21, 2012 / Issue No. 2-12
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On the Inside
Labor Relations
First Court to Rule on NLRB Notice Posting Regulation Upholds Posting Requirement
Construction Industry Experiences Slight Increase in Union Representation in 2011
CDW and Chamber Join Lawsuit Challenging NLRB Recess Appointments
Contractor Must Give Work to Plasterers Even Though Carpenters Won Representation Election
Federal Contracting
AGC Urges OFCCP to Exempt Construction Industry from Section 503 Disabilities Regulations
Recruiting & Hiring
EEOC Clarifies Hiring Guidance on High School Diploma Requirements, Disabled Veterans
IRS Issues Guidance for Employers on Tax Credit for Hiring Veterans
Leave & Benefits
Affordable Care Act Questions Answered
Labor Department Updates FMLA E-Laws Advisor
Justice Department Issues Guidance for Employers on I-9 Audits
DOL Issues Final Rule on Temporary Foreign Workers
E-Verify “Self-Check” Available Nationwide
Recruiting & Hiring
EEOC Clarifies Hiring Guidance on High School Diploma Requirements, Disabled Veterans

The Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing the federal laws that make it illegal to discriminate against a job applicant or an employee, has recently issued two guidance documents for employers, one on employer requirements that applicants have a high school diploma and the other on the employment of veterans with disabilities.  The guidance addresses the effect that the Americans with Disabilities Act (ADA) has on each hiring issue.

Regarding high school diplomas, the EEOC’s most recent guidance is a response to feedback regarding an informal discussion letter posted by the EEOC in 2011, which stated that requiring applicants to have a high school diploma may violate the ADA if it screens out individuals who cannot obtain a diploma because of a learning disability, unless the employer can demonstrate that the requirement is job-related and consistent with business necessity.

In question-and-answer format, the new guidance explains that the previous guidance does not make it illegal for a business to require that applicants have a high school diploma.  However, an employer may be required to permit someone who claims to have a disability that prevented him or her from getting a high school diploma show by other means that he or she is qualified for the job.  For example, the employer may consider work experience in the same or similar jobs, or permit the applicant to demonstrate performance of the essential functions of the job.  The employer can also require the applicant to show proof of a disability and that the disability actually prevents the applicant from meeting the diploma requirement. 

The guidance also clarifies that “the ADA only protects someone whose disability makes it impossible for him or her to get a diploma.”  The statute does not protect an individual who simply decided not to get a high school diploma.  In addition, the guidance explains that employers do not have to give preference to an individual with a disability over an individual without a disability, but may still choose the candidate who is best able to perform the essential duties of the job.

Regarding the employment of veterans with disabilities, the EEOC’s Guide for Employers explains protections for veterans with service-connected disabilities under the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

The guide describes how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities, and briefly explains how protections for veterans with disabilities differ under USERRA and the ADA.  The guide also provides information on laws and regulations that employers may find helpful when recruiting and hiring veterans with disabilities is a company priority.  

Specifically, the guide addresses the following questions:

  • What protections does the ADA provide to veterans with disabilities;
  • When is a veteran with a service-connected disability protected by the ADA;
  • May an employer ask if an applicant is a “disabled veteran” if it is seeking to hire someone with a disability;
  • What steps should an employer take if it asks an applicant to self-identify as a “disabled veteran” for affirmative action purposes;
  • Are there any laws that allow agencies to give special considerations to veterans with disabilities who are looking for jobs with the federal government;
  • May a private employer give preference in hiring to a veteran with a disability over other applicants;
  • What are some specific steps employers may take to recruit and hiring veterans with disabilities;
  • What types of reasonable accommodations may veterans with disabilities need for the application process or during employment;
  • How does an employer know when a veteran with a disability needs and accommodation;
  • May an employer ask a veteran with a disability whether a reasonable accommodation is needed if none has been requested; and
  • How does USERRA differ from the ADA?

For additional information on the ADA and the laws enforced by the EEOC, visit AGC’s Labor and HR Topical Resources webpage or the EEOC website.
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