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Jan31

Require High School diploma and/or GED

Can we require this of our applicants when we currently have employees in that position doing the job without diplomas? And we can say English only rules?

Any employer should be cautious in implementing hiring standards that may be discriminatory. Ideally, you will judge applicants only on their qualifications, and hire the most qualified candidate for each position.

You can set minimum requirements for employees in various positions when there is a valid business reason to do so. For example, you may require that the CFO have a college degree in accounting or a related field. However, there are many jobs such as sales clerk or factory worker where educational background has little relevance. In that case, a better tactic might be to state that you prefer applicants who have a high school diploma, a GED OR five years of experience in a similar position.

It is important to avoid de facto discrimination. This type of illegal discrimination occurs any time an employer introduces a policy that has a disproportionate effect on members of a protected group. Suppose you had an opening for a job on the loading dock that does not require any reading or writing, just lifting heavy weights. In addition, suppose that 80% of the Hispanic applicants for the job and 75% of the African American applicants for the job did not have a high school diploma or GED. There is no business necessity for a high school diploma in this job. By requiring a high school diploma, the employer is eliminating the majority of Hispanic and African American applicants. Because this policy has a greater impact on applicants in those minority groups, the effect is illegal discrimination — even if that was not the employer's intention.  (If 50% of applicants across all racial groups have a high school diploma, then this policy would not be de facto discrimination, and it would be legal.)

Having an English only policy is even more problematic. Remember that the U.S. has no official language, and Spanish, French, Italian or Russian are as acceptable as English. Again, in some industries or jobs, there are valid business or safety reasons why employees must use English to discuss work-related issues. It is important that everyone working on a nuclear reactor be able to understand each other during an emergency, without any hesitation. However, these workplaces are in the minority.

Under Title VII of the Civil Rights Act it is illegal to discriminate against employees or applicants based on race, color, national ancestry, sex, or religion. It is also illegal to discriminate against applicants based on their citizenship, country of origin or immigration status, as long as they can legally work in the U.S. English only rules are often excuses for such illegal discrimination.

In many jobs, the ability to speak and understand English is a legitimate qualification based on business necessity. You can certainly require this of applicants for most jobs. However, excluding applicants because English is not their first language, or because they speak with an accent, is much riskier. In practical terms, if you conduct interviews in English, you will have the information you need to hire workers without implementing an English-only rule.

Because you have linked these two issues together, it certainly creates the appearance that you are trying to commit illegal discrimination by weeding out Latino applicants or applicants who may be immigrants from other countries. Obviously, that is illegal.

(A few states like Tennessee have specifically passed laws that allow an employer to require that work-related communication be in English only. However, they are the exception and discrimination under federal law is still an issue. Even in those states, employees have the right to conduct personal conversations in any language they choose, even at work.)

 

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This entry was posted on Monday, January 31st, 2011 at 3:19 pm and is filed under
Hiring and Staffing, Human Resources Management.
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