EEOC’s Recent Hearing on Out-of-Work Job Applicants

In Being Unemployed Just Got Harder (February 16, 2011), we reported the U.S. Equal Employment Opportunity Commission’s (EEOC) impending hearing on a possible national trend of hiring only those currently employed — a choice certainly not likely to help the country’s unemployment challenges.

In a post-hearing statement, EEOC Chair Jacqueline A. Berrien stated, “Today’s meeting gave the Commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools.”

According to Helen Norton, University of Colorado School of Law, employers and staffing agencies have publicly advertised jobs in fields including electronic engineering, food service management, and real property financing with the explicit restriction that only currently employed candidates will be considered.

Assistant Secretary of Labor for Policy William Spriggs presented national employment statistics indicating that minorities, particularly African Americans and Hispanics, represent the majority of those who are unemployed. Several other panelists claimed that using current employment as a selection criteria adversely impacts women, minorities, and individuals with disabilities, and called for EEOC guidance and enforcement to address the issue.

However, others testified that actual discrimination against the unemployed is rare. Fernan R. Cepero of the Society for Human Resource Management (SHRM) claimed his organization “is unaware of a widespread practice or trend to exclude unemployed individuals from consideration for available jobs.” Cepero concluded, “Employers, in SHRM’s experience, whether operating in the currently challenging economy or in more robust times, are focused on finding the right people for the job, regardless of whether or not they are currently employed.”

While the EEOC has yet to offer any regulation as a result of the hearing, the agency clearly sees any such hiring practices in a negative light.

A full list of panelists and their testimony is available online.