Not content with managing its current workload, the EEOC is looking for new theories of discrimination. It held a hearing yesterday to consider whether employers may be refusing to consider job applicants who are unemployed, and then whether that “practice” might amount to discrimination. The argument would go something like: minorities have a higher unemployment rate than whites, so any practice that rejects the unemployed excludes disproportionate numbers of minorities and, absent proof of a compelling business interest, amounts to discrimination. Any thought that the EEOC’s review would be impartial is dashed by the title of the EEOC’s own official press release on the hearing: “Out of Work? Out of Luck”.
The argument that a disproportionate share of unemployed means that a policy of excluding the unemployed is discriminatory under a disparate impact theory is faulty, of course. It is somewhat disturbing that the EEOC is not better at looking behind the superficial arguments. A policy excluding the unemployed excludes only those who are otherwise qualified. Aggregate unemployment statistics reveal nothing about the percentage of people overlooked for specific jobs. Employers who are caught up in some controversy of this type would do well to keep that in mind as they develop their defense.
For example, if one industry has 1000 employees, of whom 800 are minority, and lays off 100 in that exact proportion, there will be 80 minorities unemployed and 20 non-minorities. In a second industry, there are 500 employees, of whom 250 are minority. A layoff of 100 employees leaves 50 minorities unemployed. The aggregate percentage of minorities among the unemployed population over both industries would be 65% (130 of the 200), so it might look like minorities would be disproportionately and adversely impacted by a “no unemployed” policy. However, assuming that employees in one industry are not qualified in the other, if an employer in either industry chose to exclude unemployed applicants, the impact would be exactly proportionate to the available percentage of qualified minorities in the workforce.
This technical mathematical argument is in addition to the presentations made at the hearing by employer representatives to the effect that blanket exclusions of unemployed applicants are rare and are not what employers are doing. Employers are struggling to find the right people to fit their job openings. Excluding anyone who is unemployed probably makes poor business sense. Even so, every open job filled with someone who is already employed creates a new vacancy that can be filled by someone–probably someone who does not have a current job, or who is working at a lower level. However created, job vacancies are good for job seekers. The EEOC would do well to remember this, and to check its statistics.