Unemployment-status restrictions in public job banks

The signed original contains the letter and three model notices. View the signed original.

                                                                  CLASSIFICATION
     EMPLOYMENT AND TRAINING ADMINISTRATION                       OWI
                                                                  CORRESPONDENCE SYMBOL
                 ADVISORY SYSTEM
                                                                  DWASWS/OWI
            U.S. DEPARTMENT OF LABOR                              DATE
               Washington, D.C. 20210                             October 17, 2014


ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 10-14

TO:             AMERICAN JOB CENTERS
                STATE WORKFORCE AGENCIES
                STATE WORKFORCE ADMINISTRATORS
                STATE WORKFORCE LIAISONS
                STATE AND LOCAL WORKFORCE BOARD CHAIRS AND DIRECTORS
                STATE AND LOCAL EQUAL OPPORTUNITY OFFICERS
                STATE LABOR COMMISSIONERS
                WORKFORCE INVESTMENT ACT SECTION 166 INDIAN AND NATIVE
                      AMERICAN GRANTEES
                WORKFORCE INVESTMENT ACT SECTION 167 MIGRANT AND
                      SEASONAL FARMWORKER JOBS PROGRAM GRANTEES
                SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM GRANTEES
                EMPLOYMENT AND TRAINING ADMINISTRATION REGIONAL
                      ADMINISTRATORS
                JOB CORPS CONTRACTORS
                RECIPIENTS OF DEPARTMENT OF LABOR FINANCIAL ASSISTANCE
                SUB-RECIPIENTS OF DEPARTMENT OF LABOR FINANCIAL
                     ASSISTANCE

FROM:           PORTIA WU /s/
                Assistant Secretary
                Employment and Training Administration

                NAOMI BARRY-PEREZ /s/
                Director
                Civil Rights Center

SUBJECT:        Update on Complying with Nondiscrimination Provisions: Unemployment Status
                Restrictions and Possible Disparate Impact Based on Race, National Origin, Sex,
                and Disability

1. Purpose. The public workforce system should take proactive steps to help the unemployed
   and especially the long-term unemployed return to work. As outlined in the accompanying
   Training and Employment Notice (TEN) 12-14: Promising Practices and Resources for
   Addressing Long-Term Unemployment, 1 a number of employers, employer organizations,
1
 Training and Employment Notice 12-14, Promising Practices and Resources for Addressing Long-Term
Unemployment, issued October 17, 2014, available at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=7919.



    RESCISSIONS                                                  EXPIRATION DATE
    None                                                         Continuing

    and workforce agencies have implemented or pledged to implement specific actions, policies,
    and/or services for addressing the unique barriers to employment facing many of the long-
    term unemployed. One of these barriers, which is the subject of this Training and
    Employment Guidance Letter (TEGL), is the practice among some employers to exclude
    unemployed and especially long-term unemployed individuals from hiring consideration.
    The purpose of this TEGL is to provide information to the public workforce system and other
    entities (including the “covered entities” listed above) that receive federal financial assistance
    to operate job banks, about the practice of some employers to exclude unemployed persons
    from hiring consideration, and to provide tools to educate employers about the practical and
    legal drawbacks of this practice. This guidance is being issued by the Department of Labor’s
    Employment and Training Administration (ETA), in conjunction with the Civil Rights Center
    (CRC).

2. Background. This TEGL addresses the hiring practice of automatically excluding
   unemployed applicants from consideration for job vacancies. 2 This practice is sometimes
   overt, such as where a job posting requires applicants to “be currently employed,” but it more
   often occurs when employers, flooded by job applications, use the lack of current employment
   or evidence of long-term unemployment as a screen to reduce the applicant pool. This
   practice is detrimental to the interests of both employers and applicants. Employers may be
   excluding applicants who possess strong skills and had a strong employment record until they
   lost their jobs in the economic downturn. Further, applicants, despite their qualifications, may
   be denied the opportunity to re-join the workforce and rebuild a productive economic life.

    This TEGL provides entities in the public workforce system, listed above (and their employer
    customers), with tools to ensure these exclusionary policies are not at cross-purposes with the
    public workforce system’s efforts to promote employment opportunities for unemployed
    workers. This problem can be addressed by promoting job postings that are open to all
    applicants and otherwise encouraging open and fair access to job opportunities, training, and
    placement programs. This TEGL applies to all jobs available through a covered entity’s job
    bank.




2
 This practice was the subject of a public meeting held in February 2011 by the U.S. Equal Employment
Opportunity Commission (EEOC). See Meeting, EEOC to Examine Treatment of Unemployed Job Seekers, Feb.
16, 2011 (transcript and written testimony available at http://www.eeoc.gov/eeoc/meetings/2-16-11/). The National
Association of State Workforce Agencies (NASWA) passed a resolution at its 2011 annual meeting, voicing its
concern about “current postings in various states [that] include discriminatory language against hiring unemployed
persons, including phrases such as, ‘must be currently employed’ and ‘currently employed on a permanent basis.’”
NASWA further resolved “that the National Labor Exchange (NLX) in each state job bank will ensure that
discriminatory language is not permitted in job postings on their sites.” See NASWA’s Resolution 9 at
http://www.naswa.org/assets/utilities/serve.cfm?gid=3f161b31-73f1-494a-8fe6-518bd02215b3. A public advocacy
group identified about 150 instances of “no jobless need apply” postings. See National Employment Law Project,
Hiring Discrimination Against the Unemployed: Federal Bill Outlaws Excluding the Unemployed from Job
Opportunities, as Discriminatory Ads Persist (Briefing Paper, July 12, 2011), available at
http://www.nelp.org/site/publications/.

3. Actions to be taken by covered entities.

    a. Covered entities must provide the attached Notices to Employers (Attachments 1 and 2),
       which describe the drawbacks of excluding the unemployed from hiring consideration.
       At a minimum, covered entities must advise employers, through use of the Notices to
       Employers, about common misperceptions about hiring the unemployed. Employers
       should make clear that:
       • Employment status alone does not indicate whether someone possesses the
           qualifications for success on the job. Particularly during difficult economic periods,
           there are many reasons why a person may be unemployed that are unrelated to job
           performance. These reasons may include, but are not limited to, an individual:
              o having been in school or in a training program (including many recent high
                  school and college graduates entering the job market);
              o having to leave a job because of spousal relocation;
              o having lost a job because of lack of seniority during employer downsizing;
              o having lost a job because the employer eliminated an entire division or
                  production line, or shut down completely;
              o having left employment temporarily due to illness, injury, disability, or
                  pregnancy; and
              o having left employment to assume family care-giving responsibilities or to
                  flee situations of domestic violence.
       • The pool of the unemployed includes better-educated, more skilled, and more
           experienced individuals than in pre-recession years, providing employers with a
           wealth of viable candidates to hire. Since the peak of the last recession,
           approximately 45 percent of displaced workers had three years or more experience
           in their previous job. 3
       • The share of the unemployed with a bachelor’s degree or higher is currently 22.4
           percent, and was 20.0 percent during the peak of the last recession; and the share of
           the unemployed without a high school diploma has been trending downward since
           the peak of the last recession and is currently 14.8 percent. 4
       • The qualifications and experience that applicants acquired through past jobs do not
           automatically disappear during a period of unemployment. Many of those who are
           unemployed for long periods of time before returning to work see their earnings
           bounce back eventually to their pre-unemployment levels, suggesting little loss of
           their skills during unemployment. Even for those jobs that require state-of-the-art
           knowledge, skills and/or abilities, current employment may not be an appropriate
           gauge for determining an applicant’s relevant experience and knowledge. Many
           unemployed and underemployed workers volunteer or participate in training
           programs to maintain proficiency in their skills. 5
3
  Bureau of Labor Statistics, Current Population Survey, Displaced Workers Supplement 2011-2013,
http://www.bls.gov/news.release/pdf/disp.pdf
4
  Bureau of Labor Statistics, Current Population Survey, Table A-4, Annual Average 2013,
http://www.bls.gov/webapps/legacy/cpsatab4.htm
5
  Per the Bureau of Labor Statistics, 24.1 percent of the unemployed and 31.7 percent of part-time employees also
volunteer. http://www.bls.gov/opub/ted/2014/ted_20140228.htm. Media articles record that unemployed workers
will elect to volunteer to continue skill development and expand their networks. See

        •  Instead of automatically excluding all applicants who are currently unemployed,
           employers should assess applicants on an individual basis, such as by posing
           questions in interviews or using other nondiscriminatory selection procedures that
           are predictive of successful job performance or measure an individual’s ability to
           perform important aspects of the job.
   b. Covered entities should conduct their activities using safeguards to prevent discrimination
      against individuals in protected groups because they are unemployed. Excluding
      individuals from hiring consideration due to their unemployment may amount to unlawful
      discrimination under federal civil rights laws, as discussed in Part 4 of this document.
         i. Posting job announcements in Job Banks. Covered entities should establish policies
             and procedures to ensure that job announcements containing restrictions based on
             unemployment status are handled as described below.
              When an employer registers with the American Job Center (or other covered
                 entity) to use the Job Bank, it must receive the notice that appears as
                 Attachment 1 to this TEGL. The notice explains practical considerations that
                 counsel against screening out unemployed workers. The notice also advises
                 employers not to automatically exclude job seekers based on their
                 unemployment status or any other qualification that may not be job-related
                 and consistent with business necessity. These types of screens may have a
                 disparate impact on protected groups and could violate federal civil rights
                 laws if not job related and consistent with business necessity.
              Covered entities should use a system (automated or otherwise) for identifying
                 job postings that include hiring restrictions based on an individual’s current
                 unemployment status. This system may be the same system that entities
                 already use to identify other discriminatory language in job postings.
              When job postings that exclude individuals based on an individual’s current
                 unemployment status have been identified, covered entities must provide
                 employers that have posted these vacancy announcements the notice that
                 appears as Attachment 2 to this TEGL, which states that the employer will be
                 given the opportunity to remove or edit the vacancy announcement. The
                 notice and opportunity to remove or edit must be provided to the employer
                 whether the vacancy announcement has been posted directly with the covered
                 entity or has instead been made available in the job bank through other
                 means.
                  o Any job postings containing language excluding candidates based on an
                      individual’s current unemployment status should only remain posted
                      when accompanied by the Notice to Job Seekers that appears as
                      Attachment 3 to this TEGL, which explains that such exclusions may be
                      unlawful under certain circumstances. The notice further informs job
                      seekers that individuals without current employment are not prohibited
                      by the American Job Center from applying for the posted position.
                      Covered entities that accept job applications from job seekers should

http://www.huffingtonpost.com/2010/09/03/unemployed-volunteering_n_703625.html;
http://www.shrm.org/hrdisciplines/staffingmanagement/articles/pages/long-term-unemployed-jobseeker-guide.aspx.

                        continue to forward the applications of all applicants, who otherwise
                        meet the job qualifications, to employers despite language in vacancy
                        announcements excluding candidates based on an individual’s current
                        unemployment status.

       The Department recognizes that covered entities have a variety of systems in place to
       comply with nondiscrimination obligations, and that entities engage with employer
       customers in varying ways. Covered entities may elect to take steps other than those
       listed above that are at least equally effective to prevent the unjustified exclusion of
       unemployed persons, except that covered entities must provide the attached notices as
       discussed in this TEGL.

        ii.   Screening and referral using restrictions based on an individual’s current
              unemployment status. When screening or referring individuals for job postings, job
              orders, training, or other employment-related services, covered entity staff should
              not allow an individual’s unemployment status to impede the individual in seeking
              employment or participating in a training program or other services:
               Covered entity staff should refrain from screening and refusing to make job
                  referrals because an applicant lacks current employment. Job seekers without
                  current employment who are referred for positions where the job posting
                  takes an individual’s current employment status into account must receive a
                  copy of the notice to job seekers, Attachment 3 to this TEGL, along with the
                  job announcement.
               Nothing in this TEGL prevents covered entity staff from taking into account
                  an individual’s current unemployment status for receiving employment-
                  related services or participating in a program designed to benefit the
                  unemployed.

    c. Covered entities are also encouraged to consult the TEN 12-14: Promising Practices and
       Resources for Addressing Long-Term Unemployment, which contains best practices for
       overcoming barriers to employment for the long-term unemployed. 6

4. Applicable civil rights statutes, regulations, and guidance. The nondiscrimination
   provisions that apply to the federally-assisted workforce system prohibit intentional
   discrimination on the basis of race, national origin, sex, disability and other protected
   bases, as well as policies or practices which, though neutral on their face, have a
   disproportionate impact on these protected groups and cannot be justified as job related
   and consistent with business necessity. Although individuals without current employment
   are not a protected group under the applicable federal laws, certain antidiscrimination laws
   may be implicated when an employer disqualifies job seekers from hiring consideration
   because they are unemployed.



6
 Training and Employment Notice 12-14, Promising Practices and Resources for Addressing Long-Term
Unemployment, issued October 17, 2014, available at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=7919.

    The potential impact of this practice upon members of protected groups is apparent in light of
    national unemployment statistics. The Department of Labor’s analysis shows that African-
    Americans, Hispanics and individuals with certain disabilities are disproportionately
    unemployed and that requiring applicants to be currently employed may have a disparate
    impact on these groups. At the national level in 2013, for example, the unemployment rate
    was 6.8 percent for white men, 14.2 percent for African-American men, 12.1 percent for
    African-American women and 9.1 percent for Hispanics. 7 The unemployment rate of
    working age individuals with certain disabilities also remains significantly higher than for
    those without disabilities. 8 In 2013, the unemployment rate for individuals with certain
    disabilities who were age 16 to 64 was 14.7 percent, compared to 7.4 percent for individuals
    with no disabilities in that same age range. 9

    The possible disparate impact of such a policy on members of protected groups is particularly
    evident among long-term unemployed individuals. 10 African-Americans are
    disproportionately represented among long-term unemployed individuals, making up 24.4
    percent of the long-term unemployed. Hispanic individuals make up 18.1 percent of long-
    term unemployed individuals. 11 By comparison, African-American and Hispanic individuals
    make up 11 and 16 percent of the labor force, respectively. 12 Additionally, of unemployed
    workers, 43.3 percent of African-Americans and 41.7 percent of Asian-American and Pacific
    Islanders, a significantly higher percentage than among Whites, have been unemployed for
    27 weeks or longer. 13

    To determine whether a particular employer has violated federal antidiscrimination statutes,
    an analysis of the relevant facts of the particular case and, if available, more refined data
    would be necessary.

    a. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., prohibits
       employment discrimination based on race, color, religion, sex, and national origin. See 42
       U.S.C. 2000e-2. Entities within the public workforce system, such as the Nation’s State
       Workforce Agencies and American Job Centers, may be regarded as “employment
       agencies” under Title VII. 14 Thus, if they “print or publish or cause to be printed” any job

7
  Labor Force Statistics from the Current Population Survey, Annual 2013.
8
  See 78 FR 58706 (Sept. 24, 2013) (The Department’s Office of Federal Contract Compliance Programs (OFCCP)
final rule concerning affirmative action and nondiscrimination obligations of contractors and subcontractors
regarding individuals with disabilities).
9
  See Table A. Employment status of the civilian noninstitutional population by disability status and age, 2013
annual averages, available at http://stats.bls.gov/news.release/disabl.a.htm
10
   The Bureau of Labor Statistics defines the term “long term unemployed” as those who have been actively
searching for a job for 27 weeks or longer.
11
   Bureau of Labor Statistics, Current Population Survey, 2013 Annual Averages Table 31,
http://www.bls.gov/cps/cpsaat31.htm.
12
   Bureau of Labor Statistics, Current Population Survey, 2013 Annual Averages.
13
   See Chart 4. U.S. Department of Labor, The Economic Status of Asian Americans and Pacific Islanders in the
Wake of the Great Recession (Aug. 28, 2014), http://www.dol.gov/_sec/media/reports/20140828-AAPI.pdf.
14
   See 42 U.S.C. 2000e(c) (defining “employment agency” as “any person regularly undertaking with or without
compensation to procure employees for an employer or to procure for employees opportunities to work for an
employer”); EEOC Decision No. N-917.002, 1991 WL 11665181, at *1-2 & n.1 (Sept. 20, 1991). EEOC,

      announcement that discriminates based on race, color, religion, sex, or national origin,
      they may be liable for violating Title VII. 15 Title VII also prohibits employment agencies
      from failing or refusing to refer an individual for employment or otherwise to discriminate
      against any individual based on race, color, religion, sex, or national origin. 42 U.S.C.
      2000e-2(b). 16
   b. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, applies to all programs or
      activities receiving federal financial assistance, such as covered entities that receive
      assistance under the Workforce Investment Act and/or the Wagner-Peyser Act. Title VI
      and its implementing regulations prohibit any program or activity from excluding from
      participation in or denying the benefits of programs, or otherwise subjecting anyone to
      discrimination, on the ground of race, color, or national origin. 42 U.S.C. 2000d; 29
      C.F.R. 31.3(a). The Department’s Civil Rights Center (CRC) administers and enforces
      these requirements.
      Recipients may not use any “criteria or methods of administration which have the effect of
      subjecting individuals to discrimination because of race, color or national origin.” 29
      C.F.R. 31.3(b)(2). Further, the “selection, and referral of individuals for job openings or
      training opportunities and all other activities performed by or through employment service
      offices” must be done without regard to race, color, or national origin. 29 C.F.R.
      31.3(d)(1)(i).
   c. The Americans with Disabilities Act of 1990, (ADA), 42 U.S.C. 12101 et seq., prohibits
      employment discrimination against qualified individuals with a disability. 42 U.S.C.
      12112. The ADA applies to employers and employment agencies, 42 U.S.C. 12111(2), as
      well as state and local government programs, services, and activities. 42 U.S.C. 12132; 28
      C.F.R. Part 35. DOL’s CRC is responsible for enforcing Title II of the ADA with regard
      to “[a]ll programs, services, and regulatory activities relating to labor and the work force.”
      See 28 C.F.R. 35.190(b)(7).
   d. The Rehabilitation Act of 1973, (Section 504), 29 U.S.C. 794, prohibits discrimination
      against qualified individuals with a disability “under any program or activity receiving


COMPLIANCE MANUAL, SEC. 2, THRESHOLD ISSUES, at 2-III.B.1.b (rev. 2000), available at
http://www.eeoc.gov/policy/docs/threshold.html; EEOC POLICY GUIDANCE, NO. N-917.002, WHAT CONSTITUTES
AN EMPLOYMENT AGENCY UNDER TITLE VII, HOW SHOULD CHARGES AGAINST EMPLOYMENT AGENCIES BE
INVESTIGATED, AND WHAT REMEDIES CAN BE OBTAINED FOR EMPLOYMENT AGENCY VIOLATIONS OF THE ACT?
available at 1991 WL 11665181, at *1-2 & n.1 (Sept. 20, 1991). See, however, 47 U.S.C. 230, which may shield
Internet-based Job Banks from civil liability for posting content created by third parties.
15
   42 U.S.C. 2000e-3(b). See, however, 47 U.S.C. 230, which may shield Internet-based Job Banks from civil
liability for posting content created by third parties.
16
   OFCCP administers Executive Order 11246, which, similar to Title VII, prohibits covered federal contractors,
federally-assisted construction contractors, and covered subcontractors from discriminating in employment decisions
on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. See Executive Order
11246, as amended. OFCCP enforces the nondiscrimination requirements of Executive Order 11246 in accordance
with Title VII. The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA), which
requires covered federal government contractors to post certain categories of job announcements in the state
workforce agency job bank or with American Job Centers, also is administered and enforced by OFCCP. See 38
U.S.C. 4212(a)(2). Nothing in this TEGL is inconsistent with the obligations of federal contractors and
subcontractors under Executive Order 11246, as amended, Section 503 of the Rehabilitation Act, as amended, and
38 U.S.C. Section 4212, the Vietnam Era Veterans’ Readjustment Assistance Act, as amended. Many groups
protected by OFCCP’s laws are also disproportionately represented among the long-term unemployed.

        federal financial assistance.” 17 CRC administers and enforces the Department’s
        regulations implementing Section 504 that apply to recipients of financial assistance from
        the Department. These regulations state that no qualified individual shall, on the basis of
        disability, “be excluded from participation in, be denied the benefits of, or otherwise be
        subjected to discrimination under any program or activity,” 29 C.F.R. 32.4(a), nor may a
        recipient “use criteria or methods of administration that have the effect of subjecting
        qualified [individuals with disabilities] to discrimination on the basis of [disability].” 29
        C.F.R. 32.4(b)(4)(i).
     e. The Workforce Investment Act (WIA), 29 U.S.C. 2801 et seq., is the key source of federal
        assistance for state and local workforce development activities. The relevant
        nondiscrimination provision in WIA states that no “individual shall be excluded from
        participation in, denied the benefits of, subjected to discrimination under, or denied
        employment in the administration of or in connection with, any such program or activity”
        on the basis of race, color, religion, sex, national origin, age, disability, or political
        affiliation or belief, among other bases. 29 U.S.C. 2938(a)(2). The regulations
        implementing this provision, administered and enforced by CRC, apply to all programs
        and activities that are operated by One-Stop partners as part of the One-Stop delivery
        system. 29 C.F.R. 37.2(a)(2). Similarly, under the Wagner-Peyser Act regulations, states
        are required to assure nondiscrimination regarding any services or activities authorized
        under that Act. 20 C.F.R. 652.8(j)(1). 18

        The WIA nondiscrimination regulations prohibit recipients from using “standards,
        procedures, criteria, or administrative methods” that have the purpose or effect of
        subjecting individuals to discrimination on a prohibited ground due to the recipient’s
        administration of programs providing aid, benefits, services, training or facilities “in any
        manner.” 29 C.F.R. 37.6(d). In addition, the Wagner-Peyser Act regulations specifically
        require states to “[a]ssure that discriminatory job orders will not be accepted, except where
        the stated requirement is a bona fide occupational qualification (BFOQ).” 20 C.F.R.
        652.8(j)(2).

5. Action Requested. Covered entities and their program operators are directed to review their
   existing policies and procedures and make any changes necessary to implement the guidance
   discussed in this TEGL. They are also encouraged to consult TEN 12-14: Promising
   Practices and Resources for Addressing Long-Term Unemployment, 19 which contains best
   practices for overcoming barriers to employment for the long-term unemployed.

17
   The Department’s OFCCP enforces Section 503 of the Rehabilitation Act, 29 U.S.C. 793, which requires covered
federal contractors and subcontractors to take affirmative action to employ and advance in employment qualified
individuals with disabilities. The same employment discrimination standards that are applicable under the ADA
also apply to Sections 503 and 504 of the Rehabilitation Act, 29 U.S.C. 794. Similar standards apply under WIA
Section 188 and its implementing regulations.
18
   The Workforce Innovation and Opportunity Act (WIOA), signed into law on July 22, 2014, supersedes the
Workforce Investment Act of 1998 and amends the Wagner-Peyser Act and the Rehabilitation Act of 1973. In
general, WIOA takes effect on July 1, 2015, which is the first full program year after it was enacted. Enactment of
WIOA in no way changes the nondiscrimination and equal opportunity obligations discussed in this TEGL.
19
   Training and Employment Notice 12-14, Promising Practices and Resources for Addressing Long-Term
Unemployment, issued October 17, 2014, available at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=7919.

6. Contact Information. Inquiries about incentive programs and other efforts to promote
   employment opportunities for the unemployed should be addressed to the appropriate ETA
   regional or national office. Inquiries about civil rights issues should be addressed to CRC, by
   phone at 202-693-6500 (voice) or 202-693-6516 (TTY); by relay at 800-877-8339
   (TTY/TDD), or (877) 709-5797 or myfedvrs.tv (video); or by e-mail at
   [email protected]. Complaints alleging discrimination by entities in the public
   workforce system may be filed with CRC by postal mail, e-mail, or fax, addressed to
   Director, Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue, NW,
   Room N-4123, Washington, DC 20210, [email protected], 202-693-6505
   (fax). Further information about the discrimination complaint process is available on CRC’s
   website at http://www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm.

   Inquiries relating to discrimination in employment by federal contractors and subcontractors
   should be addressed to Office of Federal Contract Compliance Programs, U.S. Department of
   Labor, 200 Constitution Avenue, NW, Room C-3310, Washington, DC 20210.
   http://www.dol.gov/ofccp, 1-800-397-6251 (Help Desk).

7. Attachments.
     • Notice to Employers Regarding Job Bank Nondiscrimination and Hiring Restrictions
         Based on an Individual’s Unemployment Status

      •   Notice to Employers Regarding Job Posting Containing Exclusions or Restrictions
          Based on an Applicant’s Unemployment Status

      •   Notice to Job Seekers to be Attached to Job Postings with Exclusions Based on an
          Applicant’s Current Employment Status

Attachment 1: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2014/TEGL-10-14_Attachment1_Acc.pdf

                                                                                   Attachment #1

Notice to Employers Regarding Job Bank Nondiscrimination and Hiring Restrictions
Based on an Individual’s Unemployment Status

We advise employers not to automatically exclude job seekers based on their
unemployment status unless the employer can show that an unemployment status
restriction is related to the job posted and consistent with the employer’s business needs.
This type of screening requirement may unjustifiably limit the employment opportunities
of applicants in protected groups and may therefore violate federal civil rights laws. Any
employer that submits a job announcement containing restrictions or exclusions based on
an applicant’s unemployment status will have an opportunity to edit or remove the
announcement.

Practical Considerations:
• It could be difficult for employers to show that screening out applicants based on their current
    status as unemployed is job related and consistent with business necessity. For example:
         o Candidates for entry-level jobs and certain other positions receive relevant training upon
             hire.
         o An applicant who currently is employed is not likely to be employed in a position identical
             to the position being filled.
         o For jobs that do not require state-of-the-art knowledge, skills and/or abilities related to
             rapidly changing technologies or practices, the qualifications and experience that
             applicants acquired through past jobs do not automatically disappear during the period of
             unemployment. Many of those who are unemployed for long periods of time before
             returning to work see their earnings eventually bounce back to their pre-unemployment
             levels, suggesting little loss of their skills during unemployment.
         o Even for those jobs that require state-of-the-art knowledge, skills and/or abilities of rapidly
             changing technologies or practices, it cannot be assumed that the applicant has not taken
             steps to maintain proficiency in those skills and knowledge. Moreover, current
             employment may not be useful in evaluating relevant experience and knowledge.
• More accurate and potentially less discriminatory alternatives to exclusion of those currently
    unemployed include individualized assessments, such as posing problems or questions on
    applications or in interviews about an individual’s recent experience and employment history, the
    reasons underlying an individual’s status as unemployed, and his or her education and training. For
    example, by taking into account an individual’s particular circumstances, an employer may learn that
    the candidate is currently unemployed because he or she has been in school receiving relevant
    training or serving in an internship. The candidate may have been employed until very recently, or
    the candidate may have used a period of unemployment to add to his or her training and knowledge
    base.

  Relevant Information from Federal Agencies

  The U.S. Department of Labor, Civil Rights Center (CRC), is responsible for investigating complaints
  concerning public workforce system entities and programs that allege discrimination on the bases of
  race, color, religion, sex, national origin, or disability, among others. More information about the laws
  CRC enforces and its external complaint process is available at
  http://www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm, (202) 693-6500 (voice), or
  (202) 693-6516 (TTY).

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of
employment discrimination on the bases of race, color, religion, national origin or sex under Title VII
of the Civil Rights Act of 1964, and disability under Title I of the Americans with Disabilities Act of
1990. Both laws apply to employers with 15 or more employees. More information about the laws
EEOC enforces and its complaint process is available at: http://www.eeoc.gov/facts/howtofil.html,
(800) 669-4000 (voice), or (800) 669-6820 (TTY).

Attachment 2: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2014/TEGL-10-14_Attachment2_Acc.pdf

                                                                                  Attachment #2

Notice to Employers Regarding Job Postings Containing Exclusions or Restrictions Based
on an Applicant’s Unemployment Status

The public workforce system has identified hiring restrictions based on unemployment
status in the job announcement submitted for posting by this employer or in a job
announcement referenced in a job bank.

We advise employers not to automatically exclude job seekers based on their
unemployment status unless the employer can show that an unemployment status
restriction is related to the job posted and consistent with the employer’s business needs.
This type of screening requirement may unjustifiably limit the employment opportunities
of applicants in protected groups and may therefore violate federal civil rights laws. Any
employer that submits a job announcement containing restrictions or exclusions based on
an applicant’s unemployment status has an opportunity to edit or remove the
announcement.

Please take this opportunity to remove or edit the announcement as needed. If you
continue to post the announcement as is, the announcement will be posted along with
information for job seekers about the civil rights laws that may apply to restrictions based
on unemployment status.

Practical Considerations:
• It could be difficult for employers to show that screening out applicants based on their current
    status as unemployed is job-related and consistent with business necessity, as may be required
    under the law. For example:
         o Candidates for entry-level jobs and certain other positions receive relevant training upon
             hire.
         o An applicant who currently is employed is not likely to be employed in a position identical
             to the position being filled.
         o For jobs that do not require state-of-the-art knowledge, skills and/or abilities related to
             rapidly changing technologies or practices, the qualifications and experience that
             applicants acquired through past jobs do not automatically disappear during the period of
             unemployment. Many of those who are unemployed for long periods of time before
             returning to work see their earnings eventually bounce back to their pre-unemployment
             levels, suggesting little loss of their skills during unemployment.
         o Even for those jobs that require state-of-the-art knowledge, skills and/or abilities of rapidly
             changing technologies or practices, it cannot be assumed that the applicant has not taken
             steps to maintain proficiency in those skills and knowledge. Moreover, current
             employment may not be useful in evaluating relevant experience and knowledge.
• More accurate and potentially less discriminatory alternatives to exclusion of those currently
    unemployed include individualized assessments, such as posing problems or questions on
    applications or in interviews about an individual’s recent experience and employment history, the
    reasons underlying an individual’s status as unemployed, and his or her education and training. For
    example, by taking into account an individual’s particular circumstances, an employer may learn that
    the candidate is currently unemployed because he or she has been in school receiving relevant
    training or serving in an internship. The candidate may have been employed until very recently, or

  the candidate may have used a period of unemployment to add to his or her training and knowledge
  base.

Relevant Information from Federal Agencies

The U.S. Department of Labor, Civil Rights Center (CRC), is responsible for investigating complaints
concerning public workforce system entities and programs that allege discrimination on the bases of
race, color, religion, sex, national origin, or disability, among others. More information about the laws
CRC enforces and its external complaint process is available at
http://www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm, (202) 693-6500
(voice), or (202) 693-6516 (TTY).

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of
employment discrimination on the bases of race, color, religion, national origin or sex under Title VII
of the Civil Rights Act of 1964, and disability under Title I of the Americans with Disabilities Act of
1990. Both laws apply to employers with 15 or more employees. More information about the laws
EEOC enforces and its complaint process is available at: http://www.eeoc.gov/facts/howtofil.html,
(800) 669-4000 (voice), or (800) 669-6820 (TTY).

Attachment 3: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2014/TEGL-10-14_Attachment3_Acc.pdf

                                                                                  Attachment #3

Notice to Job Seekers to be Attached to Job Postings with Exclusions Based on an
Applicant’s Unemployment Status

Notice: The attached job announcement contains a hiring restriction on job seekers who
are unemployed. Unemployed job seekers are not, however, prohibited from applying for
this job. Further, rejecting applicants because they are currently unemployed may violate
federal civil rights laws, depending on the circumstances. Please see below for more
information.

Relevant Information from Federal Agencies

The U.S. Department of Labor, Civil Rights Center (CRC), is responsible for investigating complaints of
discrimination concerning public workforce system entities and programs, including this job bank, on the
bases of race, color, religion, sex, national origin, disability, among others. More information about the
laws CRC enforces and its complaint process is available at
http://www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm, (202) 693-6500 (voice),
(202) 693-6516 (TTY), or (877) 709-5797 (Federal Video Relay Service).

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of
employment discrimination on the bases of race, color, religion, national origin or sex under Title VII of
the Civil Rights Act of 1964, and disability under Title I of the Americans with Disabilities Act of 1990.
Both laws apply to employers with 15 or more employees. More information about the laws EEOC
enforces and how to file a discrimination complaint is available at:
http://www.eeoc.gov/facts/howtofil.html, (800) 669-4000 (voice), or (800) 669-6820 (TTY).