No matter where you look in the language of Title VII, or in any state or local anti-discrimination laws (that we know of), there is no protected class known as “the unemployed.”  Therefore, if you are not hired because of your unemployment status, you have no actionable claim of discrimination. Seems simple and case closed!

Not so fast!

As we noted in an earlier post (February 9, 2011), there is a concept known as “disparate impact.” This means that the use of a test or screening device, although neutral and non-discriminatory on its face, may nevertheless impact disproportionately certain protected classes, and therefore violate the law. In the case of unemployment, an ad or policy that excludes the unemployed from applying, while seeming to apply equally to all genders, races, religions, ages and other protected classes, may nonetheless have a disparate impact upon African Americans, Latinos, and older applicants – each of which class of protected applicants has a higher statistical unemployment rate.

For example, African Americans have been reported to be unemployed at a rate of almost double that of whites, while Latinos have been reported to be unemployed at a rate of almost 50% more than whites. Moreover, more than half of the long-term unemployed are over 40 years of age. Clearly, a policy that excludes the unemployed from applying has a statistically good chance of disparately impacting these groups.

The EEOC has recently taken note of sporadic (and perhaps merely anecdotal) reports of ads or policies which exclude the unemployed from applying. Admittedly these are not common, but nevertheless the purported practice has crossed the EEOC’s radar.