In yet another attempt by the EEOC to forward a disparate impact theory of discrimination, in mid-February the agency held a meeting at which it examined the alleged disparate impact caused by employers who consider for hire only those applicants who are currently employed. At the meeting, the EEOC heard from three panels about what it called called an “emerging practice” of employers to specifically exclude unemployed persons from applicant pools. According to some of the panelists, such a practice has a disparate impact on women and certain racial and ethnic minorities.
As we discussed in our February 24, 2011 post, the EEOC began trying to make a similar case regarding the use of credit checks when evaluating applicants. The EEOC’s focus on the alleged disparate impact of credit checks culminated in December 2010 with the EEOC’s filing of a lawsuit against an employer which claims that the employer’s mere use of credit histories as a screening tool discriminated against a class of black job applicants. As we said in our post, such cases are based on arguable statistics.
It is unclear why the EEOC is now taking time to review a practice — employers choosing not to consider unemployed applicants — that seems little used by employers. Even in instances where an employer may have a practice of only hiring currently employed applicants, the EEOC’s attempt to articulate a discrimination claim from such a practice is dubious. During the recession, employers laid off employees largely based upon performance-based criteria. Understandably, they wanted to retain their best employees. As a result, it is possible that some employers today are concerned — correctly or incorrectly — about potential performance issues with the job pool of currently unemployed workers. Such a concern, however, is based upon legitimate concerns about performance, not on discrimination.
Nevertheless, employers should be aware that — as with credit checks — the EEOC seems to have taken an interest in this issue. While the merits of the EEOC’s focus seem rather doubtful, the agency may be signaling imminent activity on this subject.