No law specifically says employers are prohibited from discriminating against job applicants who have been out of work for months or even years. The long-term unemployed don’t have protections spelled out in any antidiscrimination laws – or do they?
When jobseekers are part of a protected class that has a disproportionate number of people unemployed, they can begin to wonder if they’re stuck in unemployment because of their race, age, gender, disability, or some other characteristic protected under discrimination laws. The Equal Employment Opportunity Commission (EEOC) has been wondering the same thing.
The issue made headlines at the height of the recession, and the EEOC even held a hearing in February 2011 to explore the problem. Sparking the hearing were complaints that some employers were requiring applicants to be currently employed or recently out of work, effectively shutting out people who had been searching for employment for months. Some employers exclude longtime unemployed candidates because of a belief that their skills have eroded while they’ve been out of work or that they never were strong employees.
Members of the EEOC heard testimony from experts on both sides of the issue, with advocates for the unemployed maintaining that members of minority groups are especially hard hit by hiring policies that exclude the unemployed and business representatives arguing that excluding the unemployed is rare and creating another protected class would be a burden on employers.
Complaints against hiring policies ruling out the unemployed have resulted in legislative action at the state level. New Jersey was the first state to pass a law prohibiting discrimination against the unemployed in 2011, according to data from the National Conference of State Legislatures. Oregon and Washington, D.C., passed laws in 2012 as did California, but the California law was vetoed. Altogether, 22 states have at least considered such measures in the last couple of years.
How tough is it on the unemployed?
Despite laws and EEOC hearings, employers still show signs of shunning unemployed applicants. A survey released in September showed that many of the recruiters surveyed said it’s easier for them to place someone with a criminal conviction (non-felony) in a new job than it is to place someone who has been unemployed for two years.
It’s not just long-term unemployment that dampens a job seeker’s chances, though, according to the survey from Bullhorn, a seller of online recruiting software. The survey of 1,500 recruiters and hiring managers showed that job hopping is the biggest obstacle for an unemployed candidate.
Someone with a history of leaving a company in less than a year struck 39 percent of the recruiters as the biggest disadvantage in landing a new job. Not far behind job hopping, though, was being unemployed for more than a year. Thirty-one percent of the recruiters considered that the biggest detriment to the job seeker.
Another study delves into how unemployed job seekers are perceived. Researchers from the University of California Los Angeles (UCLA) and State University of New York-Stony Brook found that out-of-work applicants are met with negative perceptions unrelated to their skill sets or to the reasons they’re unemployed.
“We were surprised to find that, all things being equal, unemployed applicants were viewed as less competent, warm, and hireable than employed individuals,” said lead researcher Geoffrey Ho, who was a doctoral student in human resources and organizational behavior at UCLA when the study was conducted in early 2011. “We were also surprised to see how little the terms of departure mattered. Job candidates who said they voluntarily left a position faced the same stigma as job candidates who said they had been laid off or terminated.”
What to watch out for
Although efforts to make unemployment a protected class have been unsuccessful on the federal level and in most states, employers still face some risk of unemployment being linked to an existing protected class. Therefore employers need to have policies that help them avoid EEOC scrutiny and help them find the best candidates.
Some tips to consider:
- Make sure reasons for rejecting an unemployed candidate are job-related.
- Be aware of perceptions that may paint a false picture. Just being aware of how the unemployed are perceived can lead to a more thoughtful consideration of someone’s qualifications.
- Keep an eye out for more EEOC scrutiny. In its draft strategic plan for fiscal years 2012-2016, the EEOC mentioned economic factors among the external factors that may affect achievement of the plan. It noted that in difficult economic times, layoffs may increase and some employers “may begin enacting policies to save time or money that have an unlawful disparate impact on certain protected groups, e.g. bans on hiring currently or long-term unemployed workers, which may impact racial and ethnic groups with high unemployment.”