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.
For further reading
- Unemployed? Then Don't Bother Applying
- My Racist Company Fires Minorities
- Job Hunting Secret: The Recruiter is Not On Your Side
- My Boss Fired Me Because I'm White
Photo by John Steven Fernandez, Flickr cc 2.0