I work for a large nonprofit employer whose mission is to help inner-city children finish high school and go on to college. We do fundraising, provide tutors and coaches, work with teachers and parents, and help school districts come up with strategies and resources to reduce dropout rates, among many other things. Our employees do everything from sending out mailings and answering phones to lobbying Congress to helping kids with their math homework and college applications.
Recently, the Board decided to require all new employees to have a college degree. The Board feels that it would be great for the kids and their families we work with to see the benefits of staying in school; the Board has also said that having employees who never finished high school or college runs counter to the message we're trying to send about the importance of education. I can see their point, but I'm concerned that this requirement might screen out large numbers of applicants of color. Is it legal for us to adopt this hiring requirement?
Whether or not a hiring requirement is discriminatory depends on its intent and its effect. Some employers adopt screening tests or criteria with the purpose of screening out certain applicants. For example, imposing a strength test would have the effect of screening out larger numbers of women. If an employer's intent is to discriminate, and its hiring criteria are simply a smokescreen for this true purpose, then the employer is discriminating.
But even if an employer has no intent to discriminate, its hiring criteria may have that effect. If a selection test or requirement has a disproportionate affect on applicants in a particular protected category, that might be illegal discrimination. The key is whether the requirement is truly necessary to do the job. For example, a strength test might screen out disproportionate numbers of female applicants, but might also be necessary for a job as a firefighter, construction worker, or logger.
An employer whose screening test or requirement has a disparate impact on a protected group must show that the requirement is job-related and consistent with business necessity. This is intended to be a difficult hurdle, but not an impossible one. For example, an attorney needs to pass the bar exam to practice law, so requiring applicants for an associate position at a law firm to be admitted to the bar would meet this test. Similarly, many skills tests would pass legal muster, as long as the exam tested skills that truly were necessary to do the job.
Degree requirements are more slippery, in part because it isn't clear exactly what particular skills, aptitudes, or abilities a degree confers (unless a particular degree is required for licensing, like a law degree or medical degree generally is). And, degree requirements often do have a disparate impact against African American and Latino applicants.
In fact, the very first Supreme Court case to recognize disparate impact discrimination cases involved a degree requirement. Before federal law prohibited job discrimination, the Duke Power Company had a segregated workforce; African Americans could be employed only in its low paying labor department. After the law changed, Duke had to drop its overt discrimination. Instead, it imposed the new requirement that all applicants for hire or transfer to any other department had to have a high school diploma or a satisfactory score on two IQ tests. The Court found that these requirements had the effect of continuing the company's discriminatory practices. Because the requirements did not measure any job-related skill, they were found to be illegal.
Your Board has expressed a nondiscriminatory reason for its new requirement. But a court would look at whether it really is necessary to have a college degree to do every job at your company. The variety of jobs employees hold is going to be a major strike against the requirement: It seems pretty evident that someone can stuff envelopes, answer phones, manage databases, and do a wide variety of other work without a college degree.
And, even if a court were to accept the employer's "role model" argument for certain positions, an applicant could still win a discrimination lawsuit by showing that there are less discriminatory alternatives available. For example, an employee might be an even more effective advocate for staying in school if he or she can share how difficult it has been to succeed without a degree. An employee who has dropped out might be better able to relate to the decisions facing at-risk kids and better able to help them make a different choice. In short, if a degree requirement has the effect of screening out larger numbers of African American and Latino applicants, your employer will face a very difficult task in trying to justify the disparity.
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