Monday, August 15, 2011

The unemployed: still on the radar as a potential protected class

On August 2, 2011, a bill was introduced in the Senate which mirrored, in most significant aspects, a bill introduced in the House on June 12.  The focus of both bills is the practice of employers and employment agencies  refusing to consider, or otherwise classifying, persons who In examining the rationale for such a practice.
 The need  for such legislation was discussed in a briefing paper by the National Employment Law Project dated July 12---Hiring discrimination against the unemployed: federal bill outlaws excluding the unemployed from job opportunities, as discriminatory ads persist.  The report speculated that the exclusion of the unemployed from consideration may be as the result of a desire to reduce the workload associated with the hiring process.  Another more problematic rationale is a perception that employed workers are more likely to be better performers and do a better job because of the fact they work and survived cuts in the recession.are currently unemployed to prevent their consideration for job openings.

On February 16, 2011, the EEOC held a hearing on the subject. The testimony of the employer witnesses downplayed the problem and noted that failing to consider the unemployed would be a lack of "due diligence" by employers in the hiring process.

Given the current state of Congress and the focus on the economy with the backdrop of the 2012 elections, it is unlikely the bills will be given serious consideration.  That fact does not mean that employers should feel that disqualifying the unemployed from consideration in hiring is risk free.  To the contrary, it is now a high risk action.

For the last 10 months, the EEOC has held hearings on employer practices that impede employment because of an individual's status.  Hearings focused on refusal to hire persons with bad records; persons who are unemployed; and persons who have arrest or conviction records.  It is a shift in focus that recognizes that protection based on "immutable characteristics"  such as race, age, sex, and national origin may not be enough in today's economy to effectively protect individuals in protected classes.

In Griggs v. Duke Power, U.S. Supreme Court addressed the issue of a high school diploma as a requirement for employment and approved the use of the disparate impact analysis to challenge the practice. The disparate impact method of proof is applicable to these "status" cases. The EEOC is in a position to challenge such practices.  It has the expertise and resources to develop a disparate impact claim where an individual does not.

Employers need to be aware of the potential risks associated with the use of the three "status" criteria in hiring.  There should be a legitimate business reason for the practice, and an employer should monitor which applicants are being eliminated to see if there is in fact a disparate impact.  It would seem hiring agencies are at greatest risk since the EEOC may try to focus on customer preference as the sole justification for such exclusion.

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