Legal: The Dangers of Rejecting Candidates Based on Employment Gaps
By Kate Bischoff
Kate Bischoff, ERE’s legal columnist, is an overly enthusiastic, sarcastic, and opinionated management-side employment attorney and human resources professional. Originally published in ERE Daily Newsletter – November 19, 2020
Gaps in employment happen for innumerable reasons. Yet their mere existence purports to be a red flag for many hiring managers. So, before you make hiring decisions based on such gaps, it’s worth keeping in mind that there are at least three legal reasons that doing so could spell trouble.
Did you know that 17 states prohibit discrimination on the basis of whether an individual is a parent?
Familial and/or parental discrimination is unlawful in Alaska, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Minnesota, Nebraska, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Utah, Virginia, and the District of Columbia. (If that’s not the oddest-ever group of states…)
This means an employer cannot refuse to hire someone because they have a family or are a parent.
So suppose Genhi, a woman in her 40s, has a gap in her resume of 13 years. What could be the reason for it? Could it possibly be that she raised kids? Whatever the reason for her 13-year gap, it is not relevant to whether she can do the job for which she applied.
When presented with a gap like Genhi’s, hiring managers will often claim that Genhi’s skills must be stale and not useful to the organization. To prepare for these judgments, ask Genhi how she has kept her skills up to date. Look at her resume to see if she’s taken any courses to maintain any certifications or has upskilled while taking care of her children. If she hasn’t, you’ve now helped Genhi identify steps she could take to be more marketable. Or if she has already done these things, you’ve now gotten ahead of the hiring manager’s biases, putting her (and by extension, your company) in a better position to succeed.
It’s possible that a candidate had left the workforce to take care of a loved one with a serious health condition. In which case it’s also possible that the applicant is protected under federal laws, specifically Title VII and the Americans with Disabilities Act in a little-used theory of caregiving responsibilities. This theory rests on the idea that between gender and disability law, an individual who cares for a family member may be protected from adverse employment actions like refusal to hire.
The same is true if an applicant was taking care of oneself. It’s possible that an individual had a serious health condition taking them out of the workforce while they got healthy. If that’s the case, then a hiring manager’s decision to pass because of a gap could be disability discrimination.
Imagine Jim had a bout of cancer that put him in the hospital for a few months. It’s now been over a year, and he’s ready to re-enter the workforce. However, his application and resume show a gap of 18 months. Instead of asking him why he has a gap, ask him about his skills, his knowledge of the industry, and why he thinks your organization is the next step for him.
Asking about the gap is going to steer the conversation into one about his cancer, a subject about which he might be very sensitive. He may also be worried that it might hamper his ability to get a job. If Jim ends up disclosing his cancer diagnosis, it then creates room for him potentially to claim that this record of a disability or perceived disability cost him the job.
Put more frankly, people like Genhi and Jim deserve a fair chance to get a job. Just because they took time to care for their family or themselves does not mean that you should automatically disqualify them when they meet all the other needs of the position.
On a personal note, I have a yearlong gap in my resume between leaving the Foreign Service and resuming my life as an employment attorney. During that time, I was busy making sure my kids were settled and learning well in a new environment, as well as getting used to shuffling between two households.
It was hard for me to be out of work, but it was necessary for my guys’ wellbeing that I was available to them whenever they needed me. The compassion I received from recruiters — including the recruiter who let me cry in her office — meant the world to me and left a lasting, positive impression on that organization.
Please, be that recruiter.