Hiring practices have come a long way over the past century. There are now stringent laws which prevent hiring discrimination based on race, color, religion, sex, national origin, age, disability or genetic information.[1] As a result, when an individual submits a job application, they should be evaluated based on their qualifications. Unfortunately, there are still hiring practices that may prevent a qualified person from acquiring a job.
1. Excluding the Unemployed
Some employers advertise that the unemployed need not apply.[2] It is absurd, however, to say that being unemployed can make someone unqualified to work without taking other factors into account. Accordingly, this hiring practice is banned in some states[3] and has a federal platform against it.[4] Furthermore, this hiring practice disproportionately impacts African Americans, mothers returning to the workforce, and older workers.[5] Given that neutral employment practices resulting in disproportionate negative effects on applicants of a particular race or sex are prohibited,[6] it is difficult to understand why employers can turn away the unemployed.
1.5 Working for a company with a sketchy non-compete agreement
Current employment, however, may not shield applicants from discriminatory hiring practices as evidenced by the current eBay litigation.[7] On November 17th, 2012, the Department of Justice and the State of California sued eBay for entering into an illegal, anticompetitive hiring pact with Intuit.[8] Essentially, even if someone has a job at eBay, their employment status serves as a source of discrimination if they apply for a job with Intuit.[9] eBay and Intuit are not the only companies who have engaged in these types of agreements.[10] In September 2010, Adobe, Apple, Google, Intel and Pixar were also implicated in similar litigation and reached a settlement with the government in which they agreed not to make any further such hiring agreements.[11]
2. Nepotism
Alas, an individual who is either unemployed or works for a company with a questionable non-compete agreement, can try the nepotism route. Nepotism is the practice of showing favoritism towards close friends or family members.[12] This past summer, the Justice Department’s inspector general found several instances of federal employees attempting to hire family members.[13] This is the third investigation in the last decade that has found nepotism within the Department of Justice.[14] On one hand, it is great that the government is investigating these instances of nepotism, but on the other hand, this is the third investigation that has found these same results. One has to wonder why nothing is changing when the department has been caught three times.
3. Credit Checks
With an excellent credit score, an individual may become the owner of a brand new shiny job. As of 2011, 60% of employers performed employment-related credit checks either for some or all of their employees.[15] In fact, several states have banned credit checks because the practice is so prevalent.[16] The Equal Employment Opportunity Commission’s website indicates that pre-employment inquiries about credit rating or economic status should generally be avoided unless an employer can show that the information is essential to the particular job because they tend to impact minorities and females adversely.[17] The exception carved out for credit checks that are “essential to the particular job in question”[18] seems like a way for highly skilled business men and their lawyers to justify pre-employment credit checks. Similar to the other hiring practices in this article, a credit check alone does not indicate an individual’s ability to perform a job. An accountant with a low credit score is not necessarily un-qualified to manage money for a business. A low credit score may simply indicate a stint of unemployment, or any number of situations unrelated to job qualifications.
There is still hope!
Hiring practices that exclude the unemployed or involve sketchy non-compete agreements, nepotism or credit checks are disconcerting for potential job applicants. States, however, are taking action against these types of practices.[19] On a local level, employers are realizing that hiring discrimination does not increase efficiency and then developing new approaches to hiring.[20] Matthew Mellen of Mellen Law Firm, uses a reality TV approach to hiring.[21] He advertises open positions and then applicants are allowed to work at the firm for a one or two week period performing actual associate work resulting in the “top associate/applicant” receiving the job.[22] Mr. Mellen’s hiring practice is definitely atypical but maybe society needs atypical to avoid discrimination and hire individuals who are actually qualified for the job.
[3] Id. (referencing a New Jersey law forbidding employers from advertising job notices that indicate the unemployed cannot apply).
[4] http://www.huffingtonpost.com/2011/03/16/new-bill-would-ban-discrimination-against-jobless_n_836687.html (Discussing The Fair Employment Act of 2011)
[6] http://www.eeoc.gov/laws/practices/index.cfm (particularly job hiring practices that are
[13] http://thehill.com/homenews/administration/240533-ig-report-finds-nepotism-at-justice-department