The Equal Employment Opportunity Commission recently posted a letter on its website claiming that it is illegal for employers to have a high-school diploma requirement if an applicant who is learning-disabled was unable to graduate from high school. The EEOC's letter radically stretches the concept of "disparate impact" or unintentional discrimination beyond what most courts would allow, in a way that will harm small employers.
Under Supreme Court precedent, an employer can be liable for "unintentional discrimination," or "disparate impact," if it has a job requirement that systematically screens out many more members of a minority group than other groups. For example, back when few black people in North Carolina had high-school diplomas, the Supreme Court ruled that a power company there that required high-school diplomas for unskilled jobs was liable for "racially disparate impact," since the requirement systematically screened out large numbers of black people at a much higher rate than white people.
But the fact that a job requirement screens out a small number of applicants of a given race (or a given minority group, like the disabled) is not enough to state a claim. It has to weed out a large number of such applicants, in a systematic way. Thus, small businesses are usually beyond the tentacles of the EEOC, since they generally don't hire a large number of people, or have a large number of minority applicants. Employers sued because their job requirements had unintended racial disparities have nonetheless prevailed in court when the absolute number of minority applicants rejected for the job was small, such as a dozen or fewer. Moreover, as the Tenth Circuit Court of Appeals noted in Coe v. Yellow Freight (1981), "discriminatory impact cannot be established where you have just one isolated decision. A claim of discrimination resulting from the mode of filling a single position does not give rise to a disparate impact."
The Washington Times was right to criticize the Equal Employment Opportunity Commission (EEOC) for its recent letter claiming that it is illegal discrimination to require job applicants to have high school diplomas (“EEOC undermines job creation,” Comment & Analysis, Jan. 3).
The EEOC’s claim is lawless and part of a pattern of economically destructive assaults on employers. The claim that an employer must drop its diploma requirement just because a single learning-disabled applicant was unable to graduate conflicts with court rulings. Court decisions such as Coe v. Yellow Freight (1981) make clear that a “disparate-impact” discrimination claim cannot be based on the fact that a selection criterion screens out a single applicant or a small group of applicants.
This is just one of many unreasonable demands by the EEOC. The commission recently threatened public safety by demanding that employers hire truckers with histories of heavy drinking and that they drop criminal background checks. These demands discourage hiring: If an employer is not allowed to hire based on merit, it may decide not to hire at all.
Yesterday, the Supreme Court unanimously rejected the argument of the EEOC and the Obama administration that churches do not have any religious-freedom rights that protect their hiring decisions against liability under federal employment and anti-discrimination laws. However, the EEOC has been more successful in lower courts dominated by liberal judges, where it has convinced some appeals-court panels to find employers liable for conduct that was not previously considered discriminatory by most courts. It has also convinced some liberal appeals-court panels to hold employers liable for failing to prevent offensive workplace speech by workers that the EEOC now claims constitutes sexual or racial "harassment," but which past appellate rulings had indicated was not severe or pervasive enough for liability. (Overly expansive or vague notions of what speech constitutes "harassment" create First Amendment problems, as various judges have noted, including U.S. Supreme Court Justices Clarence Thomas, Sandra Day O'Connor, and Samuel Alito, Justice Ming Chin of the California Supreme Court, Judge Alex Kozinski of the Ninth Circuit Court of Appeals, Judge Brooks Smith of the Third Circuit, Judge Timothy Tymkovich of the Tenth Circuit, and Judges Emilio Garza and Edith Jones of the Fifth Circuit.)