Wednesday, February 16, 2011

EEOC to examine the treatment of unemployed job seekers

Later this morning, the EEOC will hold a public meeting to examine employers’ practices of excluding currently unemployed persons from applicant pools. Presumably, the EEOC is considering whether using current unemployment status as an applicant screening tool has a disparate impact based on race.

As a management-side attorney, my natural inclination is to write this story off as the EEOC looking for another way to hamstring the ability of companies to use their best judgment in making personnel decisions. Then, I considered the following data, provided by the Center for Economic and Policy Research:


If the unemployment rate for blacks is nearly double that for whites, and Hispanics nearly 50% higher, can one argue in good faith that a disparate impact does not exist? I am not a statistician, but the impact of this data looks significant to me. Is the real question, then, not whether unemployment status has a disparate impact, but whether using current employment status is job-related for the position in question and consistent with business necessity? I can envision lots of legitimate uses for employment status as a screening factor for lots of types of jobs.

I am very curious to the read the speakers’ comments from today’s EEOC meeting to understand their thoughts on the legitimacy of using this criterion as a screening factor. I am sure I will have more to share tomorrow after digesting the notes from today’s EEOC meeting.

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