Employers have started hiring
again and are often overwhelmed with huge numbers of resumes, even for
entry-level positions. Some companies have decided that an effective way
to identify the best candidates is to refuse to consider job applicants
who are currently unemployed. But a number of human resources
professionals, the Equal Employment Opportunity Commission (EEOC), and employment law attorneys discourage the practice and say it could lead to discrimination claims.
“This practice not only can lend itself to lawsuits but is, frankly, in my opinion quite short-sighted,” said Susan Fahey Desmond, an attorney with Jackson Lewis. “A lot of potentially good applicants may have various reasons for not
being employed that are unrelated to any problems in their employment
history,” Desmond continued. “For example, someone may have taken time
off to raise young children or . . . may have wanted to try to start a
business of his or her own that simply did not work out.”
Desmond also pointed out that the EEOC has said such a practice may
have a disparate impact on any number of groups protected under Title VII and the Americans with Disabilities Act (ADA). According to the Bureau of Labor Statistics, in January 2011, the total
unemployment rate was 9 percent, but for African American adults the
rate was 15.7 percent and for Hispanic workers was 11.9 percent. William
Spriggs, assistant secretary for policy at the U.S. Department of Labor (DOL), said such practices would reduce the pool of disabled applicants by nearly 50 percent.
(In California, unemployment is currently at 11.8 percent for all groups.)
“If the practice did indeed disqualify members of a protected class
at a disproportionate rate, the employer would have to have a business
justification for such a practice,” Desmond said. “I think the employer
would find it difficult to justify this practice to a court’s
satisfaction.”