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Employment Policies That Require Candidates to Be Employed in Order to Apply May Violate Federal Discrimination Laws

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 the jobless.

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 Statistics.

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.