05/27/2011 10:30 am ET Updated Jul 27, 2011

Carrot or Stick, What Will It Take for Employers to Consider Unemployed Job Candidates?

"You're fired, and by the way, you will probably never work again." is what employers are thinking when they terminate or layoff employees.

At any time, and in a heartbeat, any of us can become that unemployed job candidate. And if you are over the age of 50, look out; you may be prohibited from being considered for future employment at all. We wonder how this can be fair and legal asking ourselves, "Is this age, race, sex, discrimination?" In and of itself, being unemployed is not a protected class under the Civil Rights Act.

Should "unemployed" be a protected class of people? Opinions swing wildly about this topic. In fact, many Americans think it is. We have never dealt with this problem before but again, we haven't had a contemporary problem of this magnitude with jobs either. The unemployment rate is holding at 9 percent, 13.7 million Americans with little movement from April to May, 2011.

Now, it has gotten to such a feverish pitch that there is proposed legislation in Washington, The Fair Employment Act of 2011 that would add "unemployment status" to the protected class list of Title VII of the Civil Rights Act of 1964.

This bill, "the stick", has been introduced, and is being deliberated in the House Committee on Education and the Workforce. It is not expected to gain much momentum, but the mere fact that this bill needed introduction is a stunner. We never would have fathomed the need for such a bill but what is the real solution?

If this legislation or some facsimile becomes law, how would the Equal Employment Opportunity Commission, (EEOC) handle the title wave of new complaints from job candidates who assume they were rejected solely based on the proposed new category of a protected class? Job candidates, in other words, could apply for multiple jobs and file appeals on the lack of consideration. For employers, the cost of litigation would be unmanageable and considerable.

A potential "carrot" would be to create a program similar to the HIRE Act of 2010 that was discontinued in early 2011. Statistics are not yet available on the success or failure of the program, but it is clear that we are nowhere close to being out of the unemployment woods.

There is the simple, novel idea of hiring employees based on applying the solid standard of bona fide occupational qualifications.

According to

"In order to establish the defense of bona fide occupational qualification, an employer must prove the requirement is necessary to the success of the business and that a definable group or class of employees would be unable to perform the job safely and efficiently. An employer should demonstrate a necessity for a certain type of workers because all others do not have certain characteristics necessary for employment success."

It appeals to our common sense to make a connection between the qualifications of a currently employed individual and the unemployed. This makes little sense. Of course, employers wonder what is wrong with the candidate who has no job. There is some merit to this argument for some, but the vast reason hinges on the flailing economy and has nothing to do with the competencies and quality of the victims of contemporary job loss.

There is no law governing what qualifications should be required for particular jobs. But, it's not likely that any job would come along with a bona fide requirement that supports an employed vs. an unemployed candidate. Are we not incumbent to hire the most qualified candidate based on our selection criteria ? And are employers leaving themselves vulnerable to prove no connection between irrelevant qualifications and the protected classes?

Perhaps we should appeal to Career Builder, Monster, and other career sites to take a critical look at their practice of permitting employers to post jobs that eliminate the unemployed from their candidate pools. If the mere size of the candidates is burdensome to employers, they provide simple internet search and sort options to employers that rank the qualifications of the most appealing candidates without discounting unemployed candidates.

There are two distinct issues here; the legality vs. the ethics. We already know that it is legal to eliminate a sector of society from consideration from employment as long as the members are not a protected class such as age, race, or sex. But we need to also consider the ethics of the issue. Simply, is it ethical to eliminate the very group of people who need to be gainfully employed to turn around this desperate economy?

Employers need to think about their reputation in the marketplace. If they will not consider a whole sector of the very qualified individuals, their market share may diminish. Word travels fast and if potential employees stop purchasing or doing business with their companies, they will suffer economically. Employers are not untouchable. They may become part of that unfortunate mass called the unemployed. It happens every day.