The EEOC recently began investigating the impact of a trend among employers and recruitment agencies to automatically disqualify unemployed workers from jobs and the resulting negative impact on protected groups, such as women, minorities, and the disabled. The EEOC began to focus on this issue after media reports in 2010 that some help wanted advertisements specifically limited applicants to currently
employed workers. In addition, the EEOC heard reports that some recruiters and human resources professionals were weeding out applicants based on their current employment status.
Statistical evidence demonstrates that unemployment rates for minorities are higher than those of whites. Similarly, women, particularly older women, and disabled persons are disproportionately represented in the ranks of the unemployed. This trend may result in a disparate impact on groups protected under Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act.
It is expected that the EEOC will devote more resources to cases involving applicants who are not considered for a position because of their current employment status and the adverse impact of such a failure to consider them. Given the EEOC’s position, employers should not post job advertisements requesting only currently employed candidates. Employers also should not automatically exclude job applicants because they had breaks in employment or are currently unemployed, because such action may lead to the exclusion of certain minority groups and possible bias claims.