Government Questions Employer's Right to Require High School Diploma

Once again the government is slowly pushing its tendrils into the private sector. The Equal Employment Opportunity Commission (EEOC) has recently released a non-binding letter indicating that employers may be in violation of the American Disabilities Act (ADA) if they require a high school diploma as a prerequisite for employment. The letter, which as of now is only an informal expression of the EEOC's position and does not have the force of law, states:

[I]f 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.

While fortunately not yet legally binding, the argument behind this letter continues a worrying trend of arbitrary government interference in the private sector. However, putting aside the incremental threat of government micromanagement of the economy, this policy has the potential for significant negative economic and social effects.

First, the policy can arguably cause undue economic burdens to employers and restrict their ability to recruit appropriate candidates. The possession of a high school diploma is often used as a filter to screen out less than desirable candidates. While, like any such screen, it will be imperfect—sometimes keeping out good matches and other times allowing bad candidates to move on to interviews or even employment—methods of filtering job applicants allows employers to reduce overhead costs and save resources. Employers will have a much longer and costly hiring process if they are forced to consider every applicant without the ability to employ screening techniques as they see fit.

Likewise, employers will be faced with growing costs related to litigation and preventative legal steps, such as developing rubrics to discern if "the diploma requirement is job related and consistent with business necessity." The policy will open the door to expensive legal battles and direct corporate resources from primary business operations to the legal department.

Such costs will, of course, be passed on to consumers or taken from employees paychecks—results that are not needed during tough economic times. Additionally, higher expenses related to hiring can lead to damage to the job market. Companies will become more hesitant to expose themselves to regulatory action or litigation by quickly entering the job market when, particularly, short-term needs arise. Any job market needs to be largely unencumbered—to facilitate easy hiring and firing and thus allowing employers and employees to rapidly find mutually beneficial arrangements. This policy will have the opposite effect on the job market.

These economic concerns are rivaled by the pernicious implications that this proposed policy has on the value of education. Many opponents cite that this will limit incentives to a high school education. This argument carries some weight. After all, if employers are limited in requiring a high school diploma, students will have less pressure to avoid dropping out. More jobs that do not require a diploma will be available and legal action will always be a viable route.

Inevitably, the social effects of devaluing education could yield unfortunate ramifications—handicapping an already flagging economy and continuing the dumbing-down of our relatively declining pool of human capital. America needs to increase its productivity and human capital; high school education is a first step in this process.

America does not need disincentives to high school education. It does not need to continue providing excuses for people to disavow personal responsibility. Nor does it need to invent ways to try to "protect" Americans against every conceived stroke of bad luck, injustice, or risk. What America needs is to increase productivity, allow economic forces to freely operate, and afford Americans the opportunity to face and overcome challenges—and sometimes also fail.

A Union of Selfishness

The teachers’ unions are once again on the defensive, following the recent release of the much lauded movie, “Waiting for ‘Superman.’” The film, made by the same people that created “An Inconvenient Truth,” has fomented a surge of discussion on the woes of the American education system and, in particular, the dastardly effects of teachers’ unions.

The documentary highlights Michelle Rhee, the chancellor of the Washington D.C. public school system, as a paragon of what is right in education reform. Rhee, who recently sat down with The Washington Post for an interview, underscores human capital as the number one issue facing the system. In particular, she emphasizes teacher evaluations, pay-for-performance metrics, and tools to attract competent principals as key factors in improving underperforming schools.

Rhee could not be more correct in focusing on what are essentially competitive, free-market solutions to education’s woes. Unfortunately, as America is starting to realize, the teachers’ unions are standing in the way of the reform needed to help the country’s children. This battle has been all too clearly demonstrated in New Jersey, where the endearing Republican Governor, Chris Christie, has taken on the egocentric teachers’ union, heaping much deserved shame upon them for their inordinate selfishness. In a rousing speech (see video below), Christie bluntly countered the all-too-common argument that the unions add any value to society. The interest of the unions is not that of the teachers, who as he admits are mostly well intentioned, and certainly not that of the students, but solely of the union as a vested interest. Christie has continued his campaign against the obdurate unions in a recent political speech in Iowa, where he mocked the unions for their power hungry nature.

The issue is systematic of the market distorting effects that unions – or any consolidated power – have in industry. They often are founded with the notion of protecting a specific marginalized group, but quickly devolve into powerful and obstinate special interests that rarely help those they purportedly represent and always disrupt the industry in which they operate. Unions played a significant role in destroying the Detroit auto industry and have continued to drag America’s education system through the mud.

The problem is that the teachers’ unions not only prevent the best teachers from being favorably compensated and encouraged to excel, but also protect those “teachers” who are utterly useless. The infamous “rubber rooms,” which have been eliminated in New York City largely in name only, are a prime example of the harmful effects of these unions. Likewise, unions are often opposed to such logical and widely accepted business models such as merit-based pay. As The Economist points out, the DC teachers’ union turned down an offer from Rhee to double teachers’ salaries if tenure was removed and merit-based pay instituted. How such a refusal by the union helps the teachers – particularly the good ones – is questionable, but the harm done to students is palpable. A mock discussion, articulated by Christie, between a child and a parent sums up the foolishness of the unions,

To believe that, this is what you have to believe: Let's say your son comes home and he says, "Mom, Dad, I can't study. I can't study, I can't work, my grades are suffering, because you know, Mrs. Smith, she's not getting her pay raises. And it gets worse," he said, feigning whines. "She actually has to pay 1.5 percent of her salary for health benefits. I cannot focus. I cannot focus with that knowledge. Mom, Dad, stop the madness. Give this woman her raise and her free health benefits and I'll get all A's."

Ultimately, it is the schools and the students – and hence America – that suffer. The backward, selfish, and short-sighted policies of the unions sap resources that could otherwise help students. Instead, these resources aid the institutional structure of the union and the worst-of-the-worst teachers. If America wants to continue its growth and not see our children and economy continue to fall behind those of China and India, it is time to break the stranglehold that these partisan interests have on our schools.