In a public meeting held last month, the Equal Employment Opportunity Commission (EEOC) heard testimony on employers’ treatment of the unemployed. Witnesses at the hearing offered examples of job advertisements that explicitly advised potential candidates that all applicants “must be currently employed” or that the employer would “not consider/review anyone NOT currently employed regardless of the reason.” While it would be unfortunate for the millions of currently unemployed Americans for potential employers to take such a stance, why is this any concern of the EEOC, the federal administrative agency tasked with investigating employment discrimination based upon characteristics protected by law such as gender, disability, age and race? Apparently, the EEOC is concerned that employer practices of excluding the unemployed from consideration for employment may have an adverse impact on certain protected groups, including racial minorities, women and workers over the age of 40.

Targeting employment practices that would seem at first blush to be outside of their jurisdiction is not unchartered territory for the EEOC. In December 2010, the EEOC sued Kaplan Higher Education Corporation in federal court in Cleveland based upon that company’s use of credit history information in making employment decisions. The EEOC alleged that Kaplan failed to hire applicants based on credit histories in such a way that it had a disparate impact on African-American applicants. Similarly, in September 2009, the EEOC sued Freeman, a Dallas-based event planning company, in federal court in Maryland, alleging that Freeman’s use of credit history information and criminal justice history information in its hiring process had a disparate impact on African-American, Hispanic and male applicants. Both of these cases remain pending.

Based upon the EEOC’s history of bringing suit in cases involving criminal background checks and credit checks, as outlined above, it seems advisable for employers to refrain from specifically listing in their employment advertising that they will consider only applicants who are employed, as doing otherwise may elicit unwanted attention from the EEOC. In the meantime, at least one state, New Jersey, is exploring legislation that would make it unlawful for employers or their agents to include language in job postings that limits the applicant pool to only those individuals currently employed. The bill passed the New Jersey legislature but was “conditionally” vetoed by Gov. Chris Christie on January 6, 2011, and returned for consideration of his specific objections.

For more information, visit the EEOC’s Web site at www.eeoc.gov/eeoc/newsroom/release/2-16-11.cfm