EEOC Investigates Discrimination Against the Unemployed

The March 2011 unemployment report provided some encouraging news for job seekers. The 8.8% unemployment rate was the lowest since early 2009, with 216,000 new jobs added to the economy. New jobless claims also decreased, as these statistics heightened speculation that employers would hire in greater numbers as the economy continues to recover. Despite these promising numbers, applicants are now encountering a frustrating hurdle: job ads requiring that candidates be currently employed in order to be considered. Advertisements appearing on countless virtual job boards now have some variation of "must be currently employed" or "must be recently employed" as one of many qualifications employers now seek.

While employers are free to set forth specifications for candidates, such requirements beg the question of whether they are illegitimately discriminating against the jobless by only considering applicants who are currently employed. While politicians and some media members may dismiss this concern, the Equal Employment Opportunity Commission (EEOC) recently held a public meeting to discuss this trend.

The commission heard comments on two important questions: First, is it illegal to exclude unemployed applicants? While many anti-discrimination laws prohibit hiring bias on the basis of race, gender, age or religion, they do not specifically cover the unemployed. However, the latest recession has had a disproportionate impact on minorities and older workers. For example, 20 percent of the unemployed are African American, compared to only eight percent of whites. Nearly half of those unemployed for more than three months are over 40. As such, employers insisting on a broad employment requirement could be considered discriminatory because of the disparate impact such a practice has on those groups, especially when such a qualification generally has no bearing on the applicant's ability to perform the new job.

Second, the commission heard views on whether it is acceptable to use current employment as a barometer for relevant experience, and whether it is effective in screening candidates. University of Colorado Law School professor Helen Norton explained that current employment is not a relevant for many jobs, especially those that provide on-the-job training. She testified that she saw a number of ads requiring current employment, including those for litigation associates, restaurant managers, and executive assistants; all of which inherently require some type of in-house training.

Counter intuitively, employers seeking to exclusively hire the currently employed exclude applicants who have voluntarily left the workforce to pursue advanced degrees or to obtain vocational training. These candidates are often equally or more qualified than those who are currently employed. However, some employers believe that when someone is (or has become) unemployed, his or her status is likely related to poor past job performance. While employers are free to weed out potentially problematic employees, current employment is not necessarily an indicator of future performance.

Proving the discriminatory effect of a seemingly neutral practice requires a great deal of statistical information. However, the evidence increasingly suggests that discriminating against the unemployed as a matter of course should be an illegal practice. If you believe that you have been treated differently by a potential employer or hiring agency due to your unemployment status, discuss your situation with an experienced employment law attorney.