Aug 9, 2011
This article is part of a series called News & Trends.

Is your company among those who reject the unemployed because they are unemployed?

If you are — and a report from the National Employment Law Project suggests the list is longer than you might think — be careful. You’re walking a thin line between legal discrimination, and the kind that just might result in a disparate impact complaint from the EEOC.

At the behest of some 50 members of Congress, the U.S. Equal Employment Opportunity Commission held a day-long hearing on the matter several months ago. No formal statement has come out of the hearing, but the attention focused on the issue by the EEOC and Congress is raising concern among the employment bar. Labor lawyers are counseling employers to act carefully, avoiding blanket policies against hiring the unemployed.

Unless you are hiring in New Jersey, it is legal to include language in a job posting discouraging the unemployed from applying. In the Garden State, however, it became illegal on June 1 to discriminate against the unemployed in print or online ads. But everywhere, it’s bad PR to include the kind of wording that turned up in the now-infamous Sony Ericsson job posting.

Legal or not, employment lawyers at Foley & Lardner warned a few months ago that “employers can expect their hiring practices concerning the unemployed to be scrutinized.”

With an unemployment rate (in June) of 16.2 percent, twice that of whites, blacks could well be disproportionately impacted by a blanket “no unemployed” policy. Thus, said the Foley & Lardner lawyers, “The issue also seems ripe for a disparate impact test case, perhaps even one brought by the EEOC itself against an employer.”

The labor specialist group at Weil, Gotshal & Manges concluded a detailed account of February’s EEOC hearing on unemployment discrimination with this:

Given the EEOC’s attention on blanket prohibitions against hiring unemployed applicants, employers run the risk of raising the EEOC’s interest when imposing these types of bans, which could culminate in a lawsuit brought by the EEOC or by individual job applicants denied employment because of such a prohibition. Even if the EEOC or a claimant would not ultimately prevail, given the cost and distraction associated with defending against such claims, it would be prudent for employers to investigate alternative ways of achieving their goals, if practical, rather than relying solely on employment status as means of evaluating job candidates.

Irrespective of the EEOC threat, there’s a groundswell of support to “do something” about the nation’s job situation and its 14 million unemployed and another 11.3 million underemployed and discouraged workers.

New Jersey’s law had the support of the state’s Republican governor, Chris Christie, who’s often mentioned as a possible presidential candidate. New Jersey neighbor, New York, and Michigan have taken up similar legislation.

At the federal level there are two bills dealing with the subject. The more moderate, introduced last month by Connecticut Democrat Rosa DeLauro, makes it unlawful to publish a job posting that contains discriminatory language. It also prohibits employers from refusing to consider or hire an individual simply because they are unemployed.

Enforcement is up to the aggrieved individual in a civil action or by the Department of Labor.

The second bill adds the unemployed as a protected class to Title VII. This would make the EEOC the enforcement arm, and subject employers to all the reporting and compliance requirements.

The likelihood of either federal bill passing is probably not high. But that doesn’t mean it’s impossible, particularly for the DeLauro bill. With elections coming up next year and unemployment showing no sign of abating, both the White House and Congress may grasp at anything that suggests help.

A poll commissioned by the National Employment Law Project found 90 percent of respondents agreeing that discriminating against the unemployed is unfair. Some 63 percent favor the kind of Congressional action embodied in the DeLauro bill.

The poll got widespread attention when The New York Times wrote about the issue of unemployment discrimination.

The article notes that “there are legitimate reasons that many long-term unemployed workers may not be desirable job candidates.” These range from using employment status as a screening tool, to concerns with atrophied skills, and recruiter concerns that workers laid off early in the recession may simply have not been good performers.

Last year, I referenced other reasons for excluding the unemployed, including the usual bias to hire passive candidates.

Popular sentiment, however, is that excluding the unemployed from consideration isn’t right. In a matter of a weekend, USAction collected over 25,000 signatures on a petition calling on job boards to refuse ads that include discriminatory language against the unemployed.

Three of the largest job boards — CareerBuilder, Dice, and Monster — say they discourage customers from including such language in job postings.

On the same day the Times’ story appeared, Monster used its blog for the second time this year to say, “We at Monster strongly oppose this practice and advise our clients on the risks of discriminating against any individual.”

Both CareerBuilder and Dice said they have policies against discriminatory language in job ads. Both monitor ads for compliance with relevant law, advising customers when one comes across and removing it if the client doesn’t.

Dice’s SVP, Tom Silver, pointed out that “Today, there are talented professionals who may happen to be unemployed largely due to circumstances beyond their control. Companies should seek the best talent that has the right capabilities and cultural fit. Limiting a company’s chance to find successful colleagues — only puts the employer at a disadvantage.”

Peter Weddle, executive director of the International Association of Employment Web Sites, the job board business group, said it “strongly opposes any form of discrimination in hiring, to include discrimination against those who are unemployed.”

While USAction did not contact the IAEWS before launching its petition, Weddle said the matter is really one for the government.

“Until a Federal law is passed,” he said in an email, “it’s unclear what if anything we should or should not be doing. In general, we don’t believe it is a job board’s responsibility or role to ensure employer compliance with employment law. That’s the federal government’s job.”

This article is part of a series called News & Trends.
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