In a market in which the number of people looking for jobs wildly exceeds the number of jobs available, some employers have opted to narrow the field of applicants by eliminating unemployed workers from consideration. While some employers restrict the field to individuals who are currently employed, others allow candidates who are “recently unemployed” to apply. Although the reasons employers impose these limitations are not altogether clear, some jobs may have skill requirements that change quickly, and employers may be anxious to hire workers with the most up-to-the-minute skills. Whatever the reason, the tactic has drawn sharp criticism from the Equal Employment Opportunity Commission (EEOC) and legislative responses at the state and federal level.
Pending Federal Legislation
Legislation pending in Congress includes the Fair Employment Opportunity Act of 2011 (SB 1471), which was introduced in August. The bill would bar employers and employment agencies from discriminating against job applicants solely on the basis of their “status or history of employment.” Employers with 15 or more employees would be covered by the law, which prohibits discrimination in the hiring process and in job advertisements.
The bill includes a provision that prohibits employers from retaliating against an individual for exercising his legally protected rights. Like wage claims, a claim of unemployment discrimination may be filed with the secretary of labor. The bill also allows for a private cause of action that may be filed in federal or state court. Remedies provide for damages and equitable relief, including employment. A companion bill was introduced in the House in July (House Resolution 2501). Both bills are in committee.
EEOC Weighs In
In February, the EEOC held a public meeting to address unemployment discrimination. Although unemployment status is not a protected characteristic under federal fair employment laws, the commission has indicated that excluding unemployed workers from applicant pools may subject employers to disparate impact claims because unemployment rates for minorities tend to be higher than those of whites.
The EEOC has further indicated that unemployment discrimination could have a disparate impact on protected groups such as women and individuals with disabilities. Although a solid connection between unemployment discrimination and these protected classes isn’t readily apparent, it’s clear that the EEOC is prepared to pursue disparate impact claims based on an employer’s refusal to consider unemployed workers as qualified candidates.
Bottom Line
Although legislation limiting unemployment discrimination has been enacted in only one state, employers that want to ensure compliance with applicable laws and avoid disparate impact claims should review their current hiring policies and practices to confirm that qualified job candidates aren’t being eliminated solely on the basis of their unemployment status. Your review should include job advertisements ― particularly if ads are being placed by an employment agency.
You should also make clear to staffing and employment agencies that qualified unemployed workers are welcome to apply. As always, hiring decisions should be based on legitimate nondiscriminatory reasons grounded in how well an applicant’s experience and skills correspond to a job’s requirements. That’s still the most effective way to find the best person for the job.
As a current human resources director who was laid off after 20 years at a major institution, and fortunately hired 3 months later, I emphasize with job seekers who have been out of work for a year or more. I truly can’t imagine what that must feel like. For employers to have the audacity to demand that an applicant be employed in order to become employed is pure beauracratic insanity! It’s pure discrimination. Unemployed workers are welcome to apply with our company, as well as any other applicant.
A decision not to hire the ‘unemployed’ has got to be considered arbitrary.
It is disgusting to think that someone that probably consideres themselves an HR professional would think this way. What could be the reasoning: The unemployed are that way because they prefer it; anyone unemployed must not be worthy of my consideration; I have too much work so this is one criterial to apply; and the list could go on… So, talented people are sidelined and in some cases lives (certainly livelihood) are crushed and some other company loses an employee in the process.
Whatever happened to the concept of bona fide job requirements? My bigger concern is by making the unemployed protected is that they can then demand home loans and credit that they cannot pay for.
I can understand the frustration (and even anger) on the part of those searching for work. This however seems to be a bit of a stretch on the part of the EEOC. What would make more sense is devoting time, resources and energy helping people who are unemployed get connected with employers and industries that are hiring, help people who have never done so learn how to network, apply for positions electronically and perhaps most importantly, learn how to form support groups to help each other through this.
Americans are still kidding themselves about how big the change is that his hit our (and the global) economy. Having people to talk with, cry with and share your successes with is a vital part of staying sane and keeping focused on finding work.
As a manager with 20+ years experience, I completely support this idea. I have inflicted “down-sizings” and “reorganizations” on others several times. And it has happened to me twice in my career. It sickens me to hear that companies discriminate solely on the basis of being unemployed. This is ageism and racism, one-off. Let’s take this one step further: No employer should be able to downsize, rightsize, or reorganize anyone over age 40 without significant proof of incompetence, malfeasance, or threatening behavior. “At-will” employment needs to be overturned and take its place with child labor, sweatshops, and other cruel practices once upheld by the legal system.
I am currently in school for human-resources management, so I’m sure that I don’t have the expertise or skills of many of those who have left comments. But I will say that not hiring employed people for the simple fact that they are not currently employed is clearly a fallacious approach and strikes me as incompatible with any human-resources concepts I am currently learning. It’s nothing more than discrimination and has no place in the recruiting process.