A lot of factors go into hiring the best possible candidate for a job, including experience, education and employment stability. Those are all legitimate reasons to prefer one candidate over another.
Recent case: Nina Shanin is a CPA of Ukrainian origin. She applied for several state accounting positions over the years, but was never hired, despite being called in for several interviews. When no offers materialized, she sued the state of Delaware, alleging national-origin discrimination.
She claimed several hiring irregularities, including allegations that the written test screened out immigrants and that one of the members of a hiring committee asked her after her interview where she was from.
The state told the court that it hired a diverse group of accountants for the positions Shanin wanted. It chose the candidates it did in part because each had years of experience working in the accounting field for state government and had solid employment histories before leaving the private sector for public service.
It argued that job stability was a legitimate business reason to filter out some candidates like Shanin who had never worked more than two years for the same employer.
The court dismissed Shanin’s case. First, it concluded the hiring committee member’s offhand question about her origins was not enough to constitute discrimination. But it also concluded that a stable prior work history was a legitimate candidate selection factor. (Shanin v. State of Delaware, No. 10-4784, 3rd Cir., 2011)
Caution: The New Jersey legislature just passed a law prohibiting employers from stating in their job ads that they won’t consider unemployed candidates. It’s too early to tell whether the law will extend to using stable work history as a selection reason. For now, consult your attorney before excluding someone solely on the basis of unemployment or related job difficulties.