Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Wednesday, the Equal Employment Opportunity Commission (EEOC) held a public meeting to address the alleged “emerging practice” of excluding currently unemployed job-seekers from applicant pools. In a letter (pdf) urging EEOC Chair Jacqueline Berrien to address this issue, several members of Congress requested that Berrien “issue a statement detailing how employers discriminating against the unemployed can open themselves up to disparate impact claims because a larger percentage of the unemployed population consists of minorities.” To that end, the EEOC’s meeting was broken into three panels to discuss the Department of Labor’s latest unemployment data, the use of unemployment status screening, and the impact of this alleged screening practice on the unemployed.
Assistant Secretary of Labor for Policy William Spriggs presented national employment statistics indicating that minorities, particularly African Americans and Hispanics, are overrepresented in the unemployed population. Following his testimony, several panelists claimed that using current employment as a selection criteria adversely impacts women, minorities, and individuals with disabilities, and called for EEOC guidance and enforcement to address this issue. According to law professor Helen Norton:
this is not an isolated practice, as a sampling of recent job announcements reveals that employers have required applicants for a wide range of jobs to be currently employed as a condition of further consideration. These jobs include freight handlers, restaurant managers, sales representatives and other salespersons, litigation associates, mortgage underwriters, electrical engineers, apartment maintenance technicians, and executive assistants.
Similarly, Christine L. Owens, Executive Director of the National Employment Law Project, claimed:
there is a disturbing and growing trend among employers—honored by staffing firms—to refuse to consider the unemployed for available job openings, regardless of their qualifications. This refusal is often explicitly manifested in job ads that include restrictive language specifying that only currently employed candidates will be considered; or that no unemployed candidates will be considered, regardless of the reason for unemployment; or no candidate unemployed for more than a certain period (e.g., six months) will be considered. Employers or staffing firms questioned about such ads typically pull the ads or delete the exclusionary language, but that does not signal that they will not apply the exclusion in the selection process.
Others, however, testified that the practice of discriminating against the unemployed is uncommon. Speaking on behalf of the Society for Human Resource Management (SHRM), Fernan R. Cepero claimed that the organization “is unaware of a widespread practice or trend to exclude unemployed individuals from consideration for available jobs.” Cepero concluded that: “employers, in SHRM’s experience, whether operating in the currently challenging economy or in more robust times, are focused on finding the right people for the job, regardless of whether or not they are currently employed.” Similarly, another panelist testified that “under the widespread practice that I have seen employers follow, the simple fact that the applicant is or was unemployed does not operate to disqualify the applicant. The reason the employer may decline to hire the applicant will be the underlying reason the applicant became unemployed, and typically it is job-related.” For example, the panelist explained that if an applicant’s unemployment is due to the fact that he or she was fired for cause due to workplace violence, that reason may rightly disqualify the unemployed applicant from further consideration.
Coming after the EEOC’s recent hearing on the use of credit history as an employment screening tool, Wednesday’s hearing is another signal that the Commission is focusing on hiring practices.
A full list of panelists and links to their testimony can be found here.