Are you guilty of unemployment discrimination? With the economic recovery still sputtering, unemployed workers may find themselves at a disadvantage in the job market, and lawmakers and the EEOC are taking action against employers whose hiring and recruiting practices consider applicant employment status. Although the long-term unemployed aren't yet a legally protected class, you can still be at risk for other types of discrimination claims that may be directly or indirectly related to this group.
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Download NowIn a BLR webinar titled "Long-Term Unemployed: The New Hiring Discrimination Risk, and How to Protect Your Organization," Reggie Gay and Rita McKinney explained that the practice of unemployment discrimination can be a dangerous hiring practice, even if you don’t expressly prohibit unemployed applicants but have a record of not hiring the long-term unemployed.
Policies excluding the unemployed may pose a threat under existing discrimination laws because protected classes such as minorities, people with disabilities, and older workers are likely to be affected by discrimination against the unemployed.
Potential for Disparate Impact in Unemployment Discrimination
Employers need to consider the “disparate impact” on protected groups. Under Title VII of the Civil Rights Act of 1964, employers can't discriminate against applicants or employees based on race, color, religion, sex, national origin, or age. Unemployed individuals are not one of the groups, but any required qualification for employment could be considered unlawful if it has an adverse impact on a protected group (this is disparate impact).
In the webinar, Reggie Gay explained: "if you put into effect some qualification that would have an adverse impact on one of these groups – religion, sex, national origin, age, race, color, etc. – then you could run afoul of Title VII. . . If the mandatory qualifications disproportionately eliminate more applicants from a protected group from being considered for that job than they do from a non-protected group, then the qualification may be found to be discriminatory."
Thus, even though the long-term unemployed aren't yet a legally protected class, and unemployment discrimination is not specifically illegal, you can still run afoul of current anti-discrimination laws by imposing unlawful mandatory qualifications such as:
- Requirements that an employee be of a certain height or weight (these requirements have an adverse impact on women and certain nationalities)
- Requirements that applicants have a high school diploma or college degree (certain groups due to historical discrimination and limited educational opportunities have been adversely affected by this)
- Employers refusing to consider applicants with extensive prior experience (this could be viewed as age discrimination)
The employer must be prepared to show that any requirement is job related and consistent with business necessity. If you have a legitimate reason for your requirements, this is not a problem. The issue lies with imposing these types of requirements when there is not a legitimate business reason for it.
With this as background, you can see how unemployment discrimination could have a disparate impact on certain groups just as easily. "The courts and the EEOC have been looking at this, as well as the legislatures of various states and the national government," noted Gay. It is in your best interest to steer clear of this issue because unemployed discrimination – the practice of excluding the unemployed when hiring – has been drawing a lot of attention.
The above information is excerpted in part from a BLR webinar titled "Long-Term Unemployed: The New Hiring Discrimination Risk, and How to Protect Your Organization," with experts Reggie Gay and Rita McKinney. For more information on unemployment discrimination, retaliation, and ADAAA issues, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Reggie Gay is a shareholder at McNair Law Firm, P.A., focusing his practice on labor and employment law, workers’ compensation, litigation, healthcare, and appellate advocacy.
Attorney Rita M. McKinney is also a shareholder at McNair Law Firm, P.A., providing counsel on a broad range of employment, workplace, safety, and occupational and professional licensing/disciplinary issues.