DEMANDING TOO MUCH EDUCATION
EEOC recently put employers on notice that they may violate the law if they demand more education to compete for a job than is actually required to be successful. Here is their reasoning.
The Americans with Disabilities Act, which prohibits discrimination against disabled employees, makes it illegal for an employer to demand a high school diploma to compete for a job because the disabled are less likely to have a high school diploma than others. If the employer wants to demand that or some other educational degree, certification, or achievement, it must be able to prove that the requirement is job-related and a business necessity. While we will not get into the proof required to meet each of those criteria, suffice it to say it takes more than a simple management assertion that the educational criterion meets them.
If the employer is a federal agency, it must also be able to meet the requirements of 5 CFR 300.103 which applies to “employment practices.” That concept includes the “development and use of examinations, qualification standards, tests, and other measurement instruments.” In order to sustain the validity of an employment practice the employer must conduct an adequate “job analysis” showing a “. . . rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed. A minimum educational requirement may not be established except as authorized under section 3308 of title 5, United States Code.”
Title 5 US Code 3308 requires that, “The Office of Personnel Management or other examining agency may not prescribe a minimum educational requirement for an examination for the competitive service except when the Office decides that the duties of a scientific, technical, or professional position cannot be performed by an individual who does not have a prescribed minimum education. The Office shall make the reasons for its decision under this section a part of its public records.” Presumably, it would be a prohibited personnel practice, as well as a potential Civil Rights Act violation, to use educational requirements without complying with these requirements.
While EEOC is drawing attention to the high school diploma, it is possible to make the same arguments against any level of education. For example, NTEU challenged the IRS management decision to require that an applicant have 30 credits of accounting, with courses in five specific areas, in order to compete for the position of IRS accountant. Other federal agencies follow the OPM standard which only calls for 18 credits of accounting to compete for that job. NTEU convinced an arbitrator that IRS had violated 5 CFR 300 as well as its contract, but the FLRA overturned the decision by disagreeing with the arbitrator’s reading of the law as well as concluding that it interferes with management’s right to make selections for the union contract to place limits on who can qualify for a position. (Interestingly, the union was demanding that more applicants be treated as qualified and therefore removing any limits on who can compete or be considered, but FLRA chose to glance over that profound piece of logic and pronounce that the NTEU contract actually limited management.) NTEU has now placed virtually the same case before the Merit Systems Protection Board under 5 USC 1204(f) and has been awaiting a decision from the normally prompt Board for nearly a year. (See NTEU, 61 FLRA 846 and work backwards through three FLRA decisions)
While an employer may wish to exploit a particularly rich labor market by hiring only from among those with advanced degrees, such as MBA, or advance certifications, such as a CPA, that has the effect of limiting the applicant pool. If that further has the effect of inordinately excluding members of any protected class who can otherwise successfully perform the job even without the degrees and certification, it can be discrimination as well as a prohibited personnel practice. if the requirement suddenly pops up on a vacancy announcement for the first time, the union also likely has the ingredients of a unilateral change ULP charge. FEDSMILL.com is not against rewarding those who worked extra hard to achieve academically, but as EEOC points out it can easily be an unintentional steps toward excluding one or more protected classes. Just because there are a lot of MBA holders looking for jobs does not mean the employer can demand an MBA to be a clerk, secretary, assistant, analysts or even Chief Operating Officer. It is all about “job-relatedness” and “business necessity.”