Q. We are inundated with applications for the few open positions we have. Many are from applicants who’ve been out of work for over a year. Can we exclude them automatically or do we have to come up with a specific reason—such as stale skills—for each one we reject? — K.S., South Carolina
A. In general, employers should not automatically exclude job applicants who are unemployed.
Currently, no federal law exists that prohibits a hiring decision based on employment status. But the issue has received a great deal of attention this year. The EEOC held a public hearing on the topic in February, and a bill introduced in the House of Representatives this year would amend federal law to prohibit discrimination based on unemployment status. (New Jersey does have such a law and other states are considering similar bills.)
While no federal law exists, Title VII of the Civil Rights Act prohibits employers from using practices that disproportionately exclude people based on a protected class. Certain protected classes (minorities, age 40 or older, disabled) represent a disproportionate percentage of the unemployed. So such employees may be able to file discrimination claims if they can show the “no-unemployed applicants” policy results in a disparate impact on their protected class.
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