Equal Opportunity Cops Eye 'Hire-the-Employed' Policies
Today, it's okay for you to behave as though somebody who already has a job is likely to be a better employee than somebody who is unemployed. For the moment, it is safe to run help-wanted ads expressing a preference for the already-employed, and even to have policies that automatically exclude unemployed candidates from consideration for open positions.
Enjoy the feeling. It may not last.
The Equal Employment Opportunity Commission held a hearing in February in Washington, D.C., to consider whether companies that hire only people who already have jobs are discriminating against the unemployed. A parade of witnesses presented mostly anecdotal evidence supporting the contention that these policies -- which are said to be expanding -- unfairly exclude the disabled, women, and some racial and ethnic minorities, who are more likely to be unemployed.
Here's what could happen now:
1. The EEOC could decide, probably after a lengthy and loud period of comment and regulation-drafting, to include discrimination against the unemployed as one of the forms of bias outlawed in the Civil Rights Act of 1964. That would make it the peer of discrimination based on age, disability, pregnancy, race, religion, and sex.
2. The EEOC could move more quickly, taking a case to court and trying to convince a judge that a crime has been committed.
3. The EEOC's attention could attract the attention of Congress, which could pass legislation outlawing employment-based discrimination.
4. Nothing. The EEOC might investigate further and Congress might get involved, but until a law is signed or a regulation put in place, the result is no change.
What will happen is unknown. "Holding a Commission meeting does not necessarily mean that a new regulation will follow," according to EEOC Spokesperson Christine Nazer. However, she also said the EEOC was "concerned that barring unemployed persons may exclude qualified job-seekers and some minority groups, and therefore may be discriminatory under civil rights law."
By way of background, the EEOC saw its responsibilities expanded when Congress passed the Genetic Information Nondiscrimination Act in 2008. But it's looking for more turf. Last October, the commission held a hearing similar to the one on unemployment, but this one focused on whether using credit scores in hiring decisions was illegal.
Eric Welter, an employment attorney in Herndon, VA, says the EEOC will probably argue that "refusing to hire unemployed applicants will have a 'disparate impact' on minorities," he says. The disparate impact theory doesn't enjoy unanimous support on the U.S. Supreme Court, however, he adds. That could complicate an EEOC end-run around rule-making and legislative processes by taking a case to court.
So what's a hard-working, blameless -- although potentially discriminatory -- employer to do? For one, keep an eye on news from the EEOC and don't be surprised if you get a bulletin telling you that what you used to do is now illegal. For two, feel free to keep hiring the employed today, but don't get so dependent on the practice that you might find it hard to change if you had to.
I'll leave you with this ominous-sounding quote from EEOC Chair Jacqueline A. Berrien: "Throughout its 45 year history, the EEOC has identified and remedied discrimination in hiring and remains committed to ensuring job applicants are treated fairly. [The] meeting gave the commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools."
Mark Henricks is an Austin, Texas, freelance journalist whose articles on business, technology and other topics have appeared in The New York Times, The Wall Street Journal, Entrepreneur, and many other leading publications. Learn more about him at The Article Authority. Follow him on Twitter @bizmyths.
Image courtesy of Flickr user Kenski1970, CC2.0