EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

TITLE VII, ADEA, & ADA: Qualification Standards and Disparate Impact

May 19, 2010

This responds to your letter of November 2, 2009 to then Acting Chair Stuart Ishimaru, in which you ask whether "it is potentially a legal problem" to require a job applicant to possess knowledge, skills, or abilities (KSAs) that can be acquired or mastered in eight or fewer hours in order to be hired for a job. You are particularly concerned about the possible adverse impact that such requirements may have.

The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., which prohibits discrimination on the bases of race, sex, color, national origin, and religion; the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq., which prohibits discrimination against individuals who are forty years of age and older; and Title I of the Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. §§ 12101 et seq., which prohibits employment discrimination against individuals on the basis of disability. All three statutes prohibit employment practices that have a disparate impact against individuals on some protected basis, but none of them generally prohibits employers from requiring the possession of certain KSAs simply because they can be acquired or mastered in eight or fewer hours.

Under Title VII, even an employer that does not intend to discriminate may be found liable if it uses a facially neutral practice that has a significant disparate effect on a protected group, unless the practice is "job related and consistent with business necessity." Even if the practice is job-related and consistent with business necessity, the employer may nonetheless be liable if there is an alternative practice "that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group." EEOC, EMPLOYMENT TESTS AND SELECTION PROCEDURES (2008), http://www.eeoc.gov/policy/docs/factemployment_procedures.html (Fact Sheet); see also 42 U.S.C. § 2000e-2(k). Under the ADEA, neutral policies that have a disproportionate impact on individuals forty years of age and older must be justified by a reasonable factor other than age. See Smith v. City of Jackson, 544 U.S. 228, 241 (2005). Under the ADA, a qualification standard, test, or other selection criterion that screens out an individual with a disability or a class of individuals with disabilities on the basis of disability must be job-related and consistent with business necessity, meaning that it must accurately measure the ability to perform the job's essential functions (i.e. its fundamental duties). Moreover, the ADA requires an employer to demonstrate that a challenged qualification standard, test, or other selection criterion cannot be accomplished, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

We know of no reason to think that a KSA would have an unlawful disparate impact on the bases of race, sex, color, national origin, religion, age, or disability simply because it would take fewer than eight hours to learn it. To the contrary, we think it highly unlikely that impact could be established on this basis alone. The reason for the policy or the availability of less discriminatory alternatives or reasonable accommodations would arise only if impact were established.

I hope this information is helpful. Please note that this is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.

Sincerely,

/s/

Christopher J. Kuczynski
Assistant Legal Counsel
ADA/GINA Policy Division

This page was last modified on June 29, 2010.