Passive Recruiting and the EEOC

On July 25th the New York Times published an article titled "The Help-Wanted Sign Comes With a Frustrating Asterisk." That "frustrating asterisk" is that the unemployed need not apply. Sounds like a bad joke. Have you heard the one about the guy who couldn't get a job because he didn't have a job?

For those of you who aren't familiar with the term or practice of passive recruiting, it describes the targeting and recruiting of candidates who are not actively looking to move from their current employer. Consider them "non-job seekers."

The practice has surfaced in electronic and print postings with language such as “unemployed applicants will not be considered” or “must be currently employed.” The National Employment Law Project, a nonprofit organization surveying the labor market, found 150 ads requiring applicants to be currently or recently employed. Where were these listings? They were found on job sites such as CareerBuilder, Craigslist, Monster and Indeed.

Often it is implied that an unemployed candidate is inferior, or flawed. There are a lot of reasons why people are out of work. The recession is one of them. So, why should an unemployed candidate be perceived as more of a risk? While some candidates may have been laid off due to performance reasons, given the current economic condition, even the best employees are at risk of losing their jobs. Or, they already have. In this job market there are many, many talented people currently available. However, the stigma associated with being unemployed still exists.

Earlier this year at the request of approximately 50 members of Congress, the EEOC held a hearing to “examine the practice by employers of excluding currently unemployed persons from applicant pools.” It appears as though the EEOC is watching and there is now a renewed focus on this potential form of discrimination in recruitment and hiring.

If your company rejects the unemployed, because they are unemployed, be careful. What you are doing may result in a disparate impact complaint from the EEOC. While the practice may not (yet) violate discrimination laws because unemployment is not a protected status, change may be coming. The EEOC has yet to determine whether discriminating against the jobless might be illegal because it disproportionately hurts blacks and older people.

At the federal level, there are two bills dealing with the subject of passive recruiting. Rep. Rosa DeLauro (D-Connecticut), introduced a bill that makes it unlawful to publish a job posting that contains discriminatory language. The bill, identified as H.R. 2501, additionally prohibits employers from excluding from consideration to hire, or hiring, an individual because they are unemployed. “We have seen ample evidence that unemployed individuals are increasingly falling prey to discriminatory practices reducing their opportunities,” DeLauro said in a written statement.

The second bill, introduced into the House of Representatives on March 16, 2011, by Rep. Hank Johnson (D-Georgia), modifies Title VII by adding the unemployed as a protected class, falling under the auspices of the EEOC. Identified as H.R. 1113, it would “amend the Civil Rights Act of 1964 to prohibit discrimination on the basis of unemployment status.”

As an employer, it is always important to avoid discrimination in the recruiting process. What steps can you take? Well, here are a few suggestions:

• Use job descriptions which clearly reflect the KSA (knowledge, skills and abilities) that the employee will require in the position.
• Review your application form for potential areas of discrimination.
• Ensure job advertisements avoid any form of potential discrimination (age, sex, etc.).
• Have a standardized recruiting and hiring process to help diminish the chances of a lawsuit. First and foremost by ensuring that your recruiting/screening practices are job related and consistent with business necessity.
• Ensure your recruiting staff is familiar with discrimination laws.

In the 2006 EEOC document, Compliance Manual On Race and Color Discrimination, the EEOC stated "Who ultimately receives employment opportunities is highly dependent on how and where the employer looks for candidates." As an employer, keep your eyes on the how and where!