In our blog of February 22, 2011, we noted that under the anti-discrimination laws there is no protected class known as “the unemployed,” and if you are not hired because of your unemployment status, you have no actionable claim of discrimination. However, there is a concept known as “disparate impact,” which means that a hiring criteria, although neutral and non-discriminatory on its face, may nevertheless impact disproportionately certain protected classes, and therefore violate the law.
The EEOC conducted a hearing recently to explore, in the words of Chairwoman Jacqueline A. Berrien, the “emerging practice of excluding unemployed persons from applicant pools.” Experts who testified at the hearing said that there may be a “disparate impact” on those who are disproportionately represented in the jobless rolls, such as older and disabled people, African Americans, Asian Americans and Hispanic Americans.
No laws or regulations yet exist which forbid the use of employment status as a hiring criteria, but given the increase in the jobless rate, an employer who is hiring is certain to encounter applicants who are unemployed or who have unexplained gaps in their resumes. Don’t automatically disqualify these applicants, or advertise that only the employed need apply – there is no point in looking for increased scrutiny in these uncertain economic times.