Millions of Americans are out of work. The national unemployment rate was 8.5% in November 2011. This number does not include the millions of unemployed workers who have simply given up looking for work.
Adding insult to jobseekers, is a growing trend among employers to refuse to hire unemployed workers. Advertisements seeking positions as varied as electrical engineers, restaurant managers, and mortgage underwriters have contained caveats that only currently employed candidates will be considered. Employers use this requirement as a way to distinguish among the many applicants in this economy. Employers theorize that individuals who kept their jobs during the economic recession must be good employees and anyone who did not must be bad. Employers worry that people who are out of the workforce have outdated skills or are poor performers. However, such reasoning does not take into account the myriad of reasons someone may be out of work. During the recession, companies let employees go for reasons that had nothing to do with their skills or work quality. They were likely victims of cost-costing measures, poor management choices, or their company simply failed.
On February 16, 2011, the EEOC (Equal Employment Opportunity Commission) held a public meeting to examine the impact of employers considering only those currently employed for job vacancies. While the unemployed are not a protected class under anti-discrimination laws, an employer’s policy of not hiring anyone that is not current employed, can have a disparate impact on racial minorities, individuals with disabilities, women, and older persons. That is, this seemingly non-discriminatory process of selecting job candidates can have an unintentional, discriminatory effect on protected classes of persons.
Employers should be cautious if using such a policy. If it is shown that the facially neutral policy has a disparate impact on a protected class of persons, the employer must prove the policy is job related and consistent with business necessity. That is, the employer must show that being employed is a necessary qualification for the job. Even if the employer can prove that this is true, the employer may still be liable for using such a policy if the employer refuses to adopt an alternative employment practice that has a less disparate impact and serves the employer’s legitimate business needs.
References:
Hunsinger, Dana. “Long-term unemployed face stigmas in job search.” USA Today. January 23, 2011. http://www.usatoday.com/money/economy/employment/2011-01-23-longterm-unemployed_N.htm
“Out of Work? Out of Luck: EEOC Examines Employers’ Treatment of Unemployed Job Applicants at Hearing.” February 16, 2011. http://www.eeoc.gov/eeoc/newsroom/release/2-16-11.cfm
“Businesses Refuse to Hire Unemployed, EEOC says.” Findlaw. February 19, 2011. http://blog.lawinfo.com/2011/02/18/businesses-refuse-to-hire-unemployed-eeoc-says/
“Firms refusing to hire unemployed, commission told.” Arizona Daily Star. February 17, 2011. http://azstarnet.com/business/local/article_fc59c0d1-b2af-5b7b-a305-2579d955d7c6.html
