On February 16, 2011, the EEOC held hearings to address concerns that employers are screening qualified job applicants based on the applicants' unemployment history. Specifically, the EEOC is concerned that employers are systematically refusing to interview candidates because they are currently unemployed. Based on statistics obtained by the EEOC, blacks, Hispanics, older workers and disabled workers, all of whom are protected by various federal laws, are more likely to be unemployed; therefore, employers who have a practice of refusing candidates because of their current unemployment status may have implemented a policy that disparately impacts a group of people in violation of one or more of these federal laws. The purpose of the hearing was for the EEOC to understand the legal impact such a policy or practice might have with regard to these federal laws (which the agency enforces), and to ascertain how widespread the practice might be in the private sector.

The EEOC's undertaking of this review appears to have been driven by little more than anecdotal stories which make nice headlines circulating through the media in the past year. Generally these articles have reported upon the trend in which businesses have changed their hiring practices to nix otherwise qualified applicants because of their current unemployment status without substantive support for how widespread the practice is. It is a good story, though, and one that puts added fear into the hearts of the currently unemployed (which, in turn, likely increases readership of the story); but it is simply antithetical to the precepts of capitalism and competition for a business to have such a practice. Put another way - it makes no business sense to use current employment as the sole criteria for turning away a qualified candidate for the job if the company intends to maintain a competitive advantage through its workforce - so the likelihood that this is some despicable trend among hiring managers to indirectly discriminate against the aged, certain minorities and the disabled is remote, since it would be against the company's interests.

Could current employment history be a factor considered by the hiring business? If it is indicative of the employee's qualifications for the job, certainly; and that might make a lot of sense if there is a legitimate reason for doing so. But generally the details of the person's unemployment history are a topic that should be discussed at the interview stage, if at all, and not singled out as a sole threshold determinative factor for applicants. Employers who do use it to screen applicants risk the wrath of creative plaintiffs' attorneys (likely in a class action, since they would almost certainly attack the company's policy and its impact on protected applicants) and/or the EEOC, given the agency's interest in this area. Such a fate should be easily avoided, however, by businesses hiring individuals based on the individual's qualifications for the job, which may include, in part but not in whole, their recent employment history.