By Noah K. Williams

The Puget Sound’s unemployment concerns are about to take on a new dimension. As the unemployed continue to struggle to find work, many will seek to find a source of their frustrations. Often blame is heaped on former or prospective employers whether merited or not.

Discrimination claims related to hiring or termination decisions are on the rise.  With grim job prospects employees are more likely to try and extract payment from an employer based on a perceived wrong.

Seattle is not in a unique position. The Puget Sound has an unemployment rate only slightly better than the national average at 8.8%. Without the booming economy necessary to reduce employer and employee angst, the Puget Sound area will likely continue to follow the forecasted trends of rising discrimination claims (see further discussion on employment in Puget Sound).

On February 16, 2011, the Equal Employment Opportunity Commission convened with experts and scholars in the employment field to address concerns related to discrimination against the unemployed.  Because of this, a new concern for employers, business owners, and employees has surfaced (see note 1 below).

The EEOC heard statements regarding large businesses that advertised a policy against hiring the unemployed. In certain cases these businesses advertised that unemployed applicants should not even apply.

Any employment policy or practice that has a disproportionate impact on protected classes of individuals (race, gender, age, disability etc.) exposes an employer to claims of discrimination. The argument is that members of certain races are unemployed at a higher rate than others and by denying positions to the unemployed there is a disproportionate impact on those races.

As the recession continues, the emerging evidence supports the argument that discrimination against the unemployed affects certain races more than others. The Bureau of Labor Statistics through the U.S. Department of Labor tracks unemployment trends across the nation. In its most recent report the trend for disparity between the unemployment rates of certain races continued. For example, white men had an unemployment rate of approximately 8% compared to 11.6% for Hispanics men, and 15.3% for African American men.

These statistics do not prove that a violation of anti-discrimination laws has occurred. Individual complainants must still show they are a member of a protected class, and that the alleged policy or practice did in fact exist. Any policy, practice, advertisement or procedure that negatively references an applicant’s employment status can therefore expose a business or employer to claims of discriminatory hiring practices.

There are some reasons an employer or business owner may favor a currently employed applicant over an unemployed applicant. Employers frequently voice the opinion that under-performers are the first to be let go in reductions of force and only the best employees are the ones kept on staff. This may have a kernel of truth, but regardless of whether the employer intended to discriminate against anyone, the unintentional impact of the policy is what ultimately matters.

With increasing media coverage of such hiring practices, reports on discrimination against the unemployed will continue to rise. Frustrated unemployed workers will begin to turn to the legal system to right this perceived wrong. Though some employees and plaintiffs may have valid claims, there will be many who are just seeking someone to blame.

It is also unfortunate for those successful companies that are able to hire to become lightning rods for litigation. The end result may be that a seemingly legitimate hiring practice has made a bad situation worse. At a time when businesses are working towards expansion they now have additional risk to consider.

The costs of litigation should be avoided where possible. A consultation with an experienced discrimination and employment law attorney to reduce risks of litigation may be the best course of action. Business owners should contact their attorney if they are concerned their hiring practices have exposed them to liability. Though these concerns will play out more aggressively with larger employers, even mid-sized and small businesses may be exposed to claims of unemployment discrimination.

ABOUT THE AUTHOR:

Noah K. Williams obtained his J.D. with honors from Seattle University School of Law and now works as an associate attorney at Emery Reddy PLLC

His practice focuses on small business development, sub contractor status and small business employment tax assessment issues as well as employment law issues such as anti-discrimination, workers’ rights, and the employer/employee relationship.

He has litigated and assisted in the presentation of a variety of business and employment law issues including formation, dissolution, corporate governance, trademark disputes and transfers, secured transactions, employment discrimination, class action wage disputes, wrongful termination and breach of contract.

Note 1: EEOC Hearings on Treatment of Unemployed Job Seekers

EEOC to Examine Treatment of Unemployed Job Seekers

Meeting of February 16, 2011 – EEOC to Examine Treatment of Unemployed Job Seekers

Written Testimony of Christine L. Owens, Executive Director, National Employment Law Project

Written Testimony of Fernan R. Cepero, Vice President for Human Resources, The YMCA of Greater Rochester

Written Testimony of James S. Urban, Partner, Jones Day

Written Testimony of Helen Norton, Associate Professor, University of Colorado School of Law

Written Testimony of Fatima Goss Graves, Vice President for Education and Employment, National Women’s Law Center

Written Testimony of Algernon Austin Ph.D., Director of the Program on Race, Ethnicity, and the Economy, Economic Policy Institute