Recently, the EEOC held an open meeting to "examine
treatment of unemployed job seekers." During the meeting,
several witnesses presented testimony on what some view as a
growing problem in the current economy – discrimination
against the jobless. The impetus for the meeting started as early
as May of 2010, when employment organizations first noticed job
postings that explicitly discriminated against the unemployed.
These postings ranged from requirements that the person have been
employed in the last six months to specific announcements that
"no unemployed candidates will be considered at
all."
While some witnesses disputed whether such postings were indicative
of any trend, others presented actual postings of such explicit
discrimination and testimony that the discrmination is more
widespread on an implicit level. The concern with such blanket
exclusions is that they have a disparate impact on certain
protected groups that currently suffer from unemployment rates well
above the national rate of 9%. For example, a representative from
the National Employment Law Project presented data at the meeting
that the unemployment rate for African Americans was 15.7% in
January 2011. Hispanics also have an unemployment rate several
percentage points higher than the national rate.
Another issue is the impact that such a practice may have on older
workers. Information provided by the Pew Center indicates that
younger workers are much more likely to experience shorter
durations of unemployment than older workers. For example, 26.6% of
unemployed individuals between the ages of 25-34 have been
unemployed for longer than one year. Contrast this with 40.3% of
those between the ages of 55-64 who have been unemployed for at
least the same period. Thus, any postings that require an applicant
to have been employed "in the last six months" (or some
other fixed amount of time) could come under fire for having a
disparate impact against older workers in violation of the
ADEA.
With these statistics in mind, the EEOC will continue to examine
how employers are treating unemployed applicants and it may not be
long before we see the first case involving discrimination against
the unemployed. Last fall, legislation was proposed in the New
Jersey state assembly which would subject employers to penalties of
up to $10,000 for including specific language that bars unemployed
applicants from applying for open positions. The law was passed by
the legislature but conditionally vetoed by the governor and
returned to the legislature to address specific concerns.
Employers would be wise to ensure that their job postings do not
explicitly prohibit the unemployed from applying and avoid review
processes that automatically disqualify unemployed candidates
solely on that basis. While such requirements could conceivably be
necessary where up-to-date skills and knowledge are required, such
requirements must be based on reasonable factors other than
someone's age, race or gender. Creating and maintaining
documentation as to the basis for hiring decisions will also be
useful should a claim of unemployment discrimination be brought
against an employer. Ensuring that each applicant is considered
based on qualifications and not eliminated from consideration
merely by virtue of being unemployed (even when the requirement is
unwritten) will assist employers to avoid liability down the road
should the EEOC begin to prosecute such discrimination.
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