Feb 17, 2011

Discrimination Against the Unemployed?

Yesterday, the Equal Employment Opportunity Commission (EEOC) held a meeting and heard testimony on whether employers are unfairly screening out the unemployed in hiring. (See the EEOC's press release on the hearing here.) Speakers pointed to job postings that explicitly limit the applicant pool to those who already have a job (as reported in the Huffington Post, among other places); in other words, those who are out of work need not apply. 

Employment status isn't a protected category, like race, age, or gender. But that doesn't mean this practice won't lead to discrimination claims. A disparate treatment charge -- alleging that the employer intentionally discriminated against members of a protected group -- could be brought against an employer who uses current employment as a factor in hiring only against certain applicants. For example, an employer who doesn't consider whether male applicants are currently employed but does look at job status for female applicants is discriminating based on gender. 

A disparate impact charge -- alleging that an employer's apparently neutral selection practice has a disproportionately negative effect on protected applicants -- could also be brought against an employer who screens out those who are currently out of work. Even if the employer applies this factor consistently to screen all applicants, it could result in discrimination because unemployment rates are higher for African Americans, Native Americans, and Latinos. One speaker also testified that this type of practice could disproportionately exclude older women. 

This hearing is another example of the EEOC's interest in exploring how the rough job market and economic climate of the past few years might be resulting in unfair employment practices. In the last few months, the EEOC has also heard testimony -- and filed a lawsuit -- about the potential discriminatory impact of screening out applicants with poor credit histories (read my post about it here) and about the effect of the economic crisis on older workers