A recent trend among employers has become excluding from consideration
for employment any candidate who is unemployed. Some experts believe that
discrimination against the jobless may violate civil rights laws--a question
the commission is now considering.
In itself, such discrimination isn't illegal. But it
is illegal to discriminate on the basis of race or age. African-Americans
and older workers are disproportionately represented among the long-term
unemployed--meaning they may be bearing the brunt of discrimination against
Equal Employment Opportunity Commissioners at a hearing February 17, 2011
said they are investigating whether excluding the unemployed may have
a greater effect on blacks, Latinos and other ethnic minorities that tend
to have higher jobless rates. "The potential for disparate impact
is there," said William Spriggs, assistant secretary for policy at
the Department of Labor. Overall unemployment is 9 percent, with nearly
14 million people out of work. The jobless rate is 15.7 percent among
blacks and 11.9 percent among Hispanics, according the Bureau of Labor
The EEOC's interest in this practice demonstrates the complexities
of the anti-discrimination laws and how navigating through these laws
often requires legal assistance. Employers should be cautioned not to
enact rules that are nothing more than form over substance. If a facially
neutral employment policy's goal is to discriminate against a protected
class of individuals, there is significant risk of liability.
Alex P. Rosenthal, Esq.