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Can one be fired for not having a diploma over the circumstances inside... Missouri

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  • Can one be fired for not having a diploma over the circumstances inside... Missouri

    My mother was hired by a company 11 years ago when it wasn't required by this company to have a diploma. Now, a diploma is required to work here. She's been here for over 11 years. The question is: Can they legally fire someone for not having a diploma/GED even though they were hired before this requirement was effective?

    Any help would be appreciated.

    -Shane

  • #2
    Yes.
    That is, of course, she has a contract stating no diploma is required.
    Your options in the workplace are the three "L's"- Live with it, Lobby for change, or Leave. Screaming for an attorney will do no good most of the time.

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    • #3
      Agree, it's legal to terminate her for not having a diploma or GED unless she has an employment contract to the contrary & as long as they don't discriminate based on a protected characteristic (ie race, religion, gender).

      Are they terminating her currently or giving her some time to get a GED?
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

      Comment


      • #4
        I rarely disagree with Betty, but this time I'd like to present a different point of view that could support a legal basis for why mom's firing is illegal. Unless there is some statutory basis for requiring a high school diploma/GED or some other highly defendable basis for why the degree is needed, you are basically presenting a case where the employer has set a minimum qualification (MQ). MQs are like a written test, an employment hurdle which job candidates must pass and subject to challenge under Title VII if the employer cannot show business necessity and validity for that hurdle, and particularly if that hurdle causes disparate impact. This was well established in the landmark Griggs v Duke Power case where the Supremes held that Duke Power's MQ for a high school education caused adverse impact and they could not show the validity for setting such an MQ for those kinds of jobs.

        Now, one would have pretty strong grounds for challenging an MQ which basically says this is the minimum level of education needed to succeed in the job when she's been doing the job (arguably successfully or why did the keep her so long?) for 11 years already. Unless the er has very strong evidence based on job analysis and validity studies to show the need for such an MQ (which I highly doubt they have), I'd wager mom would prevail in a legal dispute and that the EEOC would gladly issue her a right to sue letter (assuming the facts as stated are supportable and there are no extenuating circumstances which the OP has left out).

        Where I work I am frequently asked to raise MQ standards on job classes, and on the rare occasions I say yes, any current incumbents are grandfathered in even if they don't meet the new MQ. But most of the time I don't even need a job analysis to say no, merely a demographic breakdown of the incumbents. As an example, I was recently asked to raise the MQ for a job class to college degree only, where the current MQ allowed for 4 years of relevant experience working in that field to substitute for the degree. When I looked at the incumbents I found that 30% of the people already doing that job did not have degrees. When I enquired if the performance evaluations of degree holders would be significantly better than those of the nondegree holders I was told probably not. My response was there was no way I would then try to go to court to defend raising an MQ when their own validity data could not support it! When the guy would not take no for an answer and went over my head I stayed firm and won out. An opposite example is where they wanted to raise the MQ to a college degree only and I found 98% of incumbents had degrees, there were professional standards requiring a degree only, the job analysis could support a degree only MQ, and similar jobs as an industry standard with other employers were all degree only.

        Allowing job relevant experience (which Mom clearly has) to substitute for education is an accepted method of avoiding the legal pitfalls set by the Griggs v Duke Power case. Therefore I think mom does have an arguable case and she certainly has the right to file a complaint with the EEOC.

        Sorry Betty and Hate...I gotta calls 'em as I sees 'em and in this rare case I have a different opinion than the one you present.
        The only thing spammers are good for is target practice.
        No trees were destroyed in the sending of this message, but a bunch of electrons and phosphors have been a tad inconvenienced.

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        • #5
          Gotta go with TMP here. Unless there is a statutory reason, such as a licensing or certificate law required by the state, she's got what appears to be a clear case under Griggs. If she's been doing the job for 11 years without a diploma, they're going to have a hard time supporting a requirement that a diploma is necessary to do the job.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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          • #6
            Yup. Unless the employer can demonstrate that a HS diploma is necessary to perform the job (which would appear to be impossible since mom has been doing the job for 11 years), then this likely would be "disparate impact" discrimination. That is, an unnecessary requirement has a greater impact on one race/gender/age group, etc., than others and is barring employment opportunities.

            Her employer would be foolish to implement this rule, at least retro-actively.

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            • #7
              Thanks, "guys." What you all said makes sense & not being a HR person I appreciate learning more from you all. Maybe this never came up for me before because I don't have anything on it or remember anything about a situation like this. I never heard of the Griggs v Duke Power Case previously. I'll tuck this info away in the back of my mind - what's left of it. Maybe I better keep written notes also. Betty3
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

              Comment


              • #8
                Griggs was one of the cases on my SPHR exam.

                I can send you a list of landmark cases involving HR issues if you like. You have my e-mail; let me know if you want one.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                • #9
                  Thanks, cbg. I sent you an e-mail. Betty3
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                  Comment


                  • #10
                    Originally posted by cbg View Post
                    Griggs was one of the cases on my SPHR exam.
                    Griggs was also a seminal case in my subspecialty area of HR. I cite it often when trying to convince someone why they can't start arbitrarily requiring college educations for janitors and fire everyone who didn't go to college. If that fails I show them the Federal Uniform guidelines. And if all else fails, I recite section 1983 of the US Code Title 42 Chapter 21 wherein they could be found personnaly liable for intentional discrimination, and that I am officially informing them that their request cannot be defended, and I would be forced to testify for the plaintiff that I had so warned them that to try to proceed further could be grounds for being held personnaly liable. That usually gets their attention. I fail to mention that 1983 has rarely been invoked in our type of situation...I can only think of a handful of cases.
                    The only thing spammers are good for is target practice.
                    No trees were destroyed in the sending of this message, but a bunch of electrons and phosphors have been a tad inconvenienced.

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                    • #11
                      Last edited by cbg; 02-27-2009, 12:43 PM.
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                      • #12
                        CBG.
                        Could I get that list of cases from you as well?
                        Thanks

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                        • #13
                          PM me your e-mail address and when I get it compiled I'll be glad to.
                          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                          Comment


                          • #14
                            To clarify a bit more, we work for a small company with the Missouri Department of Mental Health. My mother worked for another small company of the same type prior to working here. She has 11 years at each company for a total of 22 years experience. Until this past year, employees were never required to have a diploma/GED for this company. Recently, the Supervisor spoke with my Mother and informed her that the state is going to be requiring employees to have a diploma or GED or that they would be released.

                            Comment


                            • #15
                              If it's a state requirement, that's a different story.
                              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                              Comment

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