EEOC Tackles Discrimination Against the Unemployed

Kathy Gurchiek By Kathy Gurchiek February 17, 2011

Cepero_sized.jpgAre employers turning up their noses at the unemployed when it comes to considering them for job openings?

The U.S. Equal Employment Opportunity Commission on Feb. 16, 2011, grappled with the question of whether it’s common practice for U.S. employers to refuse to consider out-of-work job seekers, the rationale for it and its potentially disparate impact on protected groups.

The hearing was a response to news reports that surfaced in 2010 about some U.S. companies whose posted job openings excluded unemployed persons from consideration, especially at a time when massive layoffs led to an unemployment rate hovering in the double digits.

Fernan R. Cepero, PHR, who has 15 years of HR experience and serves as the Society for Human Resource Management’s (SHRM) New York state director, was among those offering commentary during the three-hour hearing in Washington, D.C. He is vice president of HR for the YMCA of Greater Rochester (N.Y.).

“Screening out the unemployed is counterproductive” and poor business practice, he told commissioners. “SHRM is unaware of widespread recruiting practices that involve blanket exclusions,” he said, but he added that long-term unemployment might mean the job seeker’s skills might be outdated or obsolete.

Cepero’s written statements referenced a semiannual survey SHRM has conducted with its members since October 2008. Forty-five percent of SHRM members surveyed in March 2010 reported that their organization had rehired employees it had laid off six months earlier. That’s up from 30 percent of respondents surveyed in October 2009, according to SHRM Poll: Financial Challenges to the U.S. and Global Economy and Their Impact on Organizations: Spring 2010 Update.

However, other panelists shared anecdotal evidence of qualified but unemployed people being rebuffed during their job search.

Christine Owens, executive director of the National Employment Law Project, related the story of Michelle, a 53-year-old woman who was laid off in 2008 after 16 years with her employer.

A recruiter was impressed with Michelle’s resume but upon learning that she had been unemployed for more than a year told Michelle that the employer “had expressly advised him not to refer anyone who had been unemployed for six months or more,” Owens said.

Owens lamented the lack of official data.

“There may be a disturbing and growing trend of excluding jobless workers from consideration for job openings regardless of their qualifications,” she told commissioners.

Disparate Impact?

While the unemployed are not a protected group, the practice of excluding unemployed persons from the job applicant pool could have a disparate impact on protected groups, a number of panelists said.

“It’s difficult to quantify how common this practice is,” said William E. Spriggs of the U.S. Department of Labor, but “there is a strong indication that there is a potential for disparate impact among racial minorities and among workers with disabilities and among older workers” because of higher unemployment rates among these groups.

Unemployment rates for blacks, Hispanics and Native Americans are higher than those of whites, according to Algernon Austin, director of the Program on Race, Ethnicity and the Economy of the Economic Policy Institute. When comparing college-educated workers, the unemployment rate for Asians also is higher, he told commissioners.

Joyce Bender, CEO of Bender Consulting Services, who worked as a recruiter for 16 years, said the message to exclude unemployed candidates from the applicant pool comes from employers. “[Recruiters] don’t’ get this idea on their own. They get the idea from the company,” she said.

“They perceive people who are unemployed as inferior” and reason that the person must not be productive if he or she couldn’t keep a job.

“It’s a practice that has a tremendous impact on persons with disabilities,” said Bender, whose firm recruits and hires persons with disabilities for public- and private-sector careers.

Persons with disabilities, which include military veterans, might have gaps in their employment record because of time spent undergoing treatment, she pointed out.

SHRM representative Cepero advised employers to perform due diligence when they see an employment gap on a candidate’s resume. It might result from caregiving responsibilities, illness or taking time to attend school to refresh skills, he noted.

James Urban, who counsels employers in his position as a partner at the Jones Day law firm, expressed doubt about the problem’s extent.

“At the end of the day, it’s not the unemployment that’s excluding the individual from consideration, it’s the reason for the unemployment,” he said.

“It’s my experience and belief that there is not a widespread practice among employers to disqualify applications on the basis of employment,” said Urban, who said incidents the news media have reported “are isolated examples.”

Also providing comment to the EEOC:

  • Helen Norton, professor, University of Colorado Law School.
  • Fatima Goss Graves, vice president for education and employment at the National Women’s Law Center, addressing the practice’s impact on women.

Kathy Gurchiek is associate editor for HR News.

Related Articles:

Only Employed Need Apply, SHRM Online Legal Issues, September 2010

Jobs Law Provides Tax Breaks to Companies that Hire Unemployed WorkersSHRM Online Legal Issues, April 2010



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