Will EEOC Ban Passive Candidate Searches?

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Employers' elaborate advertising and promotion campaigns to attract employed workers, known as passive candidates, may be under fire. The Equal Employment Opportunity Commission (EEOC) is investigating the adverse impact of barring people without jobs from the interviewing process. That practice imposes a significant burden on the large number of displaced workers that resulted from the recent recession.

“Some employers may use current employment as a signal of quality job performance,” Helen Norton, Associate Professor at the University of Colorado School of Law, testified in a recent public meeting. “But such a correlation is decidedly weak. A blanket reliance on current employment serves as a poor proxy for successful job performance.” She noted that employers and staffing agencies have been advertising jobs in a variety of fields with the explicit restriction that only currently employed candidates will be considered.

Such practices not only make it harder for any unemployed worker to find a job, but they have an adverse impact on minorities. Dr. William Spriggs, assistant secretary of labor for policy, presented current national employment statistics showing that African-Americans and Hispanics are overrepresented among the unemployed. He also stated that excluding the unemployed would be more likely to limit opportunities for older applicants as well as persons with disabilities.

James Urban, a partner at the Jones Day law firm, who counsels employers, expressed doubt as to the extent of the problem. Fernan Cepero, representing the Society for Human Resource Management, told EEOC that his organization is not aware of this practice being in regular use. But both Urban and Cepero noted that the automatic exclusion of unemployed persons from consideration does not constitute “due diligence” in the screening of job applicants.

Materials from the EEOC meeting, including statements and biographies of the witnesses, may be found at http://www.eeoc.gov/eeoc/meetings/2-16-11/index.cfm .