Thursday, February 17, 2011
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.