Hiring and the Law —Can I Disqualify the "Unemployed"?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I need to hire a technician for my company. I know there a lot of people out of work, but I’m looking for someone who is currently employed. I think they are more likely to be up-to-date on the most current technology in our field. Is there any problem with saying in the want ad “Unemployed need not apply”?

Answer: There was a time where that would probably not be a problem. However, lately, there has been concern about discriminating against the unemployed even though no state or federal law currently identifies “the unemployed” as a protected category. These categories are the familiar characteristics that usually cannot be considered when selecting a candidate for a job such as a person’s race, age, national origin, gender, religion, disability etc. Nevertheless, there could potentially be a problem for the company if you indicate in a want ad that the unemployed are not welcome to apply.

The federal Equal Employment Opportunity Commission (“EEOC”) held hearings this year on the growing practice of excluding the unemployed from applying for jobs. According to the EEOC, extended periods of unemployment disproportionately impact older workers, women and African Americans. For this reason, the EEOC has been considering that discrimination against the unemployed is a round-about way to discriminate against these categories, which are protected from discrimination under the law.

The way to avoid this, and any other type of discrimination, is to make sure that the company’s criteria for the job, and factors utilized in the hiring decision making process, are job related and satisfy a business necessity. For example, having your applicants up to date on the most current technology in your field is certainly a valid non-discriminatory selection criteria. Rather than presuming that someone who is employed has kept him or herself up to date, and someone who has not been working has not, use the interview process to determine whether the applicant in front of you is current in his or her technology. For example, perhaps the unemployed applicant has gone back to school to take classes in the latest methodology, where a currently employed person, maybe working on older equipment, has not had the opportunity to do so. Any time you use a person’s characteristic as a proxy (substitute) for the business skill or qualification you are looking for, the company can run into trouble.

Presuming that someone who is unemployed has not kept up to date on the technology in the field, without finding out whether this is actually true, is the same thing as using any other discriminatory stereotype. For example, presuming that people of certain ethnicities are lazy or that others are dishonest without interviewing an applicant who has the basic qualifications for the job is improperly utilizing a stereotype to take the place of your application process. Presuming a person is a certain way because of a protected characteristic is the essence of discrimination. Those generalizations have no place in the job selection process.

For these reasons, even though being “unemployed” is not exactly a protected category, making hiring decisions based on this factor can cause trouble for businesses, and likely should not be included in your job posting. The key to a successful applicant selection process is to use the job application, the job interview, and pre-job testing to learn as much as you can about each applicant and their particular skills and abilities. The successful candidate for the job would then be chosen based on specifics, rather than generalities. After all, those generalities may not be true and you may be passing up an excellent candidate on the basis of a presumption.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

As the law varies in each area, please check with an attorney to ensure you are applying these tips within the law.

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