Screening Out Unemployed Job Seekers? You May Be Breaking the Law

Last Updated Feb 16, 2011 3:23 PM EST

The unemployed aren't a protected class. At least, not to the best of my knowledge. So why is the Equal Opportunity Employment Commission (EEOC) holding a hearing today on possible illegal discrimination caused by company policies that automatically exclude currently unemployed people from the pool of candidates?

Because blacks are unemployed at twice the rate of whites.
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I don't think that executives are sitting in smoke filled rooms cackling evilly "I know how we can get away with not hiring minorities!" As labor and employment lawyer Jon Hyman points out:


Is the real question, then, not whether unemployment status has a disparate impact, but whether using current employment status is job-related for the position in question and consistent with business necessity? I can envision lots of legitimate uses for employment status as a screening factor for lots of types of jobs.

It will be interesting to see where the EEOC goes with this. And it goes to show you that businesses should thoroughly think through their reasons for changing any hiring policy.

The reality is that companies can get in trouble even when they don't mean to discriminate. It's called "disparate impact" and it's a real problem. If your policies inadvertently result in minorities being less likely to be hired (or conversely, more likely to be fired) you can be liable. You have to present a solid business reason for your policy.

I don't think the EEOC is going to buy, "Our recruiters got too many resumes" as a business necessity, since it may well result in minorities being negatively affected at a higher rate than whites.

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Photo by John Steven Fernandez, Flickr cc 2.0

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