Businesses Refuse to Hire Unemployed, EEOC says

By Stephanie Rabiner, Esq. on February 18, 2011 | Last updated on March 21, 2019

When speaking to the unemployed, discrimination is usually the last thing on their mind. After all, they're not employed, right? But once they settle in and start browsing the web for that next job, things change. Inevitably, they come across a promising ad, only to be devastated when the ad lists "currently employed" under qualifications. Discrimination has taken on new meaning.

Discrimination against the unemployed has finally come to the attention of the Equal Employment Opportunity Commission, which has just announced that it is now investigating whether the practice is as widespread as anecdotal evidence suggests, and whether the practice of requiring current employment is illegal. Employment law experts are unsure what the EEOC will do, reports The Wall Street Journal.

While the EEOC seeks evidence, it's still possible to consider the legal side of the issue. Is it even legal to discriminate against the unemployed?

This is actually a tough question that requires a lot of statistical evidence. As it stands, employment discrimination laws do not explicitly protect the unemployed. Discrimination laws do, however, outlaw discrimination on the basis of race, color and age (over 40 years old).

Title VII and the Age Discrimination in Employment Act outlaw seemingly non-discriminatory selection policies that disproportionately affect protected classes of persons. This is referred to as a disparate impact.

As of January, the unemployment rate for African-Americans was 15.7%, 11.9% for Hispanics, and only 8% for whites. Not only that, one in every three short- to medium-term unemployed person was over 40, while over half of all long-term unemployed persons were also above 40. One expert also estimates that the anti-unemployed policies lower the chance of a minority being hired by 1/3.

Clearly an overwhelming proportion of unemployed persons are racial minorities or over the age of 40. And clearly these policies have a disproportionate impact on these legally protected groups. But that doesn't make the policy illegal. The law also takes into consideration whether current employment is a necessary qualification, if there's a less discriminatory alternative, and whether the policy is reasonable. So until there's a final decision answering these questions, for those that are unemployed, discrimination will just have to be part of the game.

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