Last week, the Equal Employment Opportunity Commission held widely publicized hearings involving claims that U.S. employers are increasingly refusing to consider unemployed persons for job openings. In other words, some companies establish rules that an applicant must be currently employed to be considered for the new job. These rules are supposedly based on a belief that by screening out unemployed persons, employers will avoid those individuals who were let go by their previous employer for performance or disciplinary reasons.

At the hearing it became apparent that the extent of this practice is largely unknown. Putting aside the arguable wisdom of this screening tool, does it potentially violate federal civil rights laws? Employment status is not a protected category under Title VII or related laws. In order for a rejected applicant to state a claim under these discrimination laws, he or she would need to demonstrate disparate impact. This would require statistical information indicating that the screening policy impacts women, minorities or another protected class in numbers greater than the general applicant population.

While the EEOC speculated that this may be the case, it admitted that there was no research backing up this hypothesis. For the time being, the EEOC is unlikely to move against employers who will not consider the unemployed for jobs. As the job market improves, employers that currently have the luxury of excluding unemployed persons from consideration may be forced to reconsider this policy as the pool of qualified candidates shrinks.