According to the latest figures from the Department of Labor’s Bureau of Labor Statistics, U.S. unemployment is above 9% (about 14 million people) and has been at this level for many months. The data reflect the obvious reality that there are fewer employers looking to increase their employee numbers compared to the number of individuals seeking work. Less obvious, however, may be that for those employers who are looking, some may be taking unnecessary (or latent) risks by excluding unemployed workers from their prospective candidate pool. Stated more directly, some employers are interviewing and extending offers of employment to only those currently employed.
The reasons employers impose this limitation are not clear, but, regardless, mandating an “unemployed individual need not apply” approach has drawn sharp criticism from the Federal Equal Employment Opportunity Commission (EEOC) and legislative responses at the state and federal level.
CONSIDERING LEGISLATION Congress is currently considering legislation (known as the Fair Employment Opportunity Act of 2011) that would essentially make one’s current employment status a protected characteristic (like one’s race, age, religion, etc.) The bill allows for a private cause of action that may be filed in federal or state court and remedies provide for damages and equitable relief, including employment. Earlier this year, the EEOC held a public meeting to address “unemployment discrimination.”
Although unemployment status is not a protected characteristic under federal fair employment laws, the commission has indicated that excluding unemployed workers from applicant pools may subject employers to disparate impact claims because unemployment rates for minorities tend to be higher than those of whites. President Obama joined the fray as well. On September 8, 2011, during an address to the joint session of Congress in which he unveiled his comprehensive jobs plan, the President proposed banning companies from refusing to hire unemployed workers.
In practical terms, it is difficult to imagine how a claim for discrimination based on one’s unemployment status would work. Unlike questions regarding one’s race, religion, sex, national origin, and age, asking a person about his work history, current job status, tenure at previous or current employer, whether he or she has had any bad experiences with previous employers, whether he or she has ever been terminated from employment, etc. are entirely reasonable (and prudent) subjects of employment interviews.
A RISKY SITUATION Still, it is not wise to maintain a per se rule against interviewing or hiring the unemployed. Not only is it bad business (there is no valid reason to think one who is unemployed would make for a worse, or better, employee for you), it may be risky. If you are looking to hire new employees in a geographic area where minorities make up more of the unemployed, then, depending on the nature of the position(s) sought to be filled, not interviewing/hiring the unemployed may more negatively impact minorities. In other words, an employer can be absolutely well intentioned in believing it needs to hire from the current workforce, however, if doing so negatively impacts a protected class, it may still be unlawful.
As always, hiring decisions should be based on legitimate nondiscriminatory reasons grounded in how well an applicant’s experience and skills correspond to a job’s requirements. That’s still the most effective way to find the best person for the job.
Andrew Gould, Esq. is a labor and employment attorney, board certified by the Texas Board of Legal Specialization, with the law firm of Wick, Phillips, Gould & Martin, LLP. This article does not attempt to offer solutions to individual problems but rather is informational only. Questions about individual problems should be addressed to the employment law attorney of your choice. Contact firstname.lastname@example.org with comments and/or suggestions for future topics.