Thursday, February 17, 2011

Discrimination v. Unemployed Job Seekers

Eeoc Marcia posted Tuesday on the EEOC hearing, held yesterday, on "discrimination" by employers against unemployed job seekers.  Here's the EEOC's press release describing the outcome of the hearing. Marcia wondered about the strength of the link between an employer's refusal to hire laid-off workers and protected classifications such as race, sex, etc. -- if there's no link, then the EEOC lacks the statutory authority to do anything about this issue.  Recognizing, I would assume, that its statutory authority here may be tenuous, the EEOC devoted substantial space in its press release describing the link.  Here's a sampling:

Denying jobs to the already-unemployed can also have a disproportionate effect on certain racial and ethnic minority community members, Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, explained. Unemployment rates for African-Americans, Hispanics and Native Americans are higher than those of whites. When comparing college-educated workers, the unemployment rate for Asians is also higher. Thus, restricting applications to the currently employed could place a heavier burden on people of color, he concluded.

The use of employment status to screen job applicants could also seriously impact people with disabilities, according to Joyce Bender, an expert in the employment of people with disabilities. “Given my experience, I can say without a doubt that the practice of excluding persons who are currently unemployed from applicant pools is real and can have a negative impact on persons with disabilities,” Bender told the Commission.

Dr. William Spriggs, Assistant Secretary of Labor for Policy, offered data supporting this testimony. Spriggs presented current national employment statistics showing that African-Americans and Hispanics are overrepresented among the unemployed. He also stated that excluding the unemployed would be more likely to limit opportunities for older applicants as well as persons with disabilities.

I don't think this is enough to show actual disparate impact.  It shows that there might be a disparate impact, but it's not a showing of actual impact.

Even if there is a showing of impact, I think employers can make a good argument of job-relatedness.  Marcia pointed out a 2005 empirical study demonstrating that people who said they were laid off from their prior job had significantly worse job performance than those who said that they had quit their last job.  When layoffs occur, it's not the star employees who get the axe first.

I understand that, in this truly awful recession, lots and lots of stellar employees have been laid off through no fault of their own.  My point is only that a recent layoff -- like a time-gap on a resume or a recent conviction for theft -- is relevant to an employer's attempt to find the best possible employee for a given job, notwithstanding any possible disparate impact.  It's a red flag that should cause the employer to dig deeper.


Employment Discrimination, Labor and Employment News | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Discrimination v. Unemployed Job Seekers:


It's certainly true that WHY an employee lost a job can be relevant to one's qualifications -- this is most obviously the case when someone is terminated for misconduct or poor performance. But the EEOC's hearing focused primarily on employers who entirely exclude currently unemployed workers from consideration for job opportunities. I can't say how commonplace this practice is as a statistical matter, but I've seen job announcements requiring current employment as a condition of further consideration for a wide variety of positions: freight handlers, restaurant managers, sales representatives and other salespersons, litigation associates, mortgage underwriters, electrical engineers, apartment maintenance technicians, and executive assistants. If the plaintiff can show that such a practice imposed a disparate impact (which requires case-by-case analysis), it's hard to see how the employer could show that the practice is job related for the position in question and consistent with business necessity, as there are many reasons why one might be unemployed at any time (and especially during a time of economic downturn) that have nothing to do with job performance. They include (but are not limited to) having been in school or in a training program; having to leave a job because of spousal relocation; having lost a job because lack of seniority during employer downsizing; having lost a job because the employer eliminated an entire division or shut down altogether; and having left employment temporarily due to illness, injury, disability, pregnancy, or family caregiving responsibilities.

Posted by: Helen Norton | Feb 18, 2011 11:40:17 AM

Or having been the last one hired, and therefore the first one fired.

Posted by: Julie Martin-Korb | Mar 1, 2011 1:44:37 PM

Or your company gets acquired and the new owner downsizes eliminating whole departments due to redundancy or as cost cutting measures. Actions unrelated to individual performance or capability.

Or a new supervisor/manager/director is hired and wants his/her own people and proceeds to replace the current employess with his/her own.

Example: When InBev acquired Budweiser it eliminated the entire marketing department of Budweiser as a pure cost cutting measure, despite the fact that Budweiser's marketing department was one of the best marketing departments in any industry, world renown and highly respected.

You cite an "empirical" study as "proof" one-size fits all and there are studies that don't support the "unemployed are the bottom of the barrel" mantra.

Using employment status as a culling tool for job applicants is a lazy HR tactic supported by flimsy one-size fits all mentality.

Posted by: CharlesMartelsGhost | Mar 28, 2011 8:23:21 AM

Post a comment