Firms throw up new hurdle: Unemployed need not apply

McClatchy NewspapersFebruary 16, 2011 

WASHINGTON — As if finding work weren't hard enough already, a federal agency warns that some employers are excluding jobless workers from consideration for openings.

The practice has surfaced in electronic and print postings with language such as "unemployed applicants will not be considered" or "must be currently employed." Some ads use time thresholds to exclude applicants who've been unemployed longer than six months or a year.

Evidence of the practice has been mostly anecdotal, and information about how widespread it may be is sketchy.

But with unemployment at 9 percent and millions of people struggling to find jobs, the practice has caught the attention of regulators, lawmakers and advocates for the unemployed.

"At a moment when we all should be doing whatever we can to open up job opportunities to the unemployed, it is profoundly disturbing that the trend of deliberately excluding the jobless from work opportunities is on the rise," said Christine Owens, the executive director of the National Employment Law Project.

Members of Congress contacted the Department of Labor and the Equal Employment Opportunity Commission last year to see whether the practice violates federal employment laws against discrimination.

While the unemployed aren't a protected class under civil rights laws, the practice could be legally problematic if it has a disparate or discriminatory effect on groups of job seekers who are subject to civil rights protections.

In a public meeting Wednesday at EEOC headquarters, several witnesses testified that excluding the unemployed from job openings could disproportionately affect African-Americans, Hispanics, people with disabilities and older workers — all federally protected groups whose jobless rates are well above the U.S. average.

Blacks and Hispanics are particularly vulnerable, said William Spriggs, the Labor Department's assistant secretary for policy, because they represent a large share of unemployed workers and a smaller portion of those with jobs.

"When employers exclude the unemployed from the applicant pool, they are more likely to be excluding Latinos and African-Americans," Spriggs testified.

Most seem to agree that the overwhelming majority of job postings don't contain such language. James Urban, a partner at Jones Day law firm in Pittsburgh who counsels large employers, testified that he's never dealt with an employer who wouldn't hire the jobless.

Listings that exclude unemployed applicants would violate terms-of-use policies against discrimination at Monster.com, which posts hundreds of thousands of job openings.

"We would flag that as a violation of our policy," company spokesman Matthew Henson said. He said the website screened listings for such problems.

Spriggs said the problem might still occur behind closed doors, without the explicit language. That's because employers are looking for ways to cut through large numbers of applications quickly. On average, there are nine job applicants for every two openings, he said.

Others suggested the practice reflects a bias that workers who were laid off aren't the most talented.

Joyce Bender, the CEO of Bender Consulting Services and an advocate for people with disabilities, testified that when she worked as a job recruiter, she often was asked to hire people from the competition rather than qualified unemployed applicants. She said workers with disabilities were having an even tougher job search because of this avoidance of unemployed applicants.

While jobless applicants might have "skills that are stale or obsolete" compared with employed candidates, screening them out isn't effective because it limits the pool of qualified workers, said Fernan Cepero, the state director of the New York State Society for Human Resource Management. He said the practice probably wasn't widespread because "the stakes involved are too high for that."

But Owens of the National Employment Law Project said her group routinely heard from older workers who'd been rejected for consideration because they weren't employed.

A 53-year-old Illinois woman who was laid off after 19 years as an information technology supervisor said a recruiter wouldn't send her on a job interview when he realized she hadn't worked for a year. A 44-year-old woman lost out on a pharmaceutical sales position because the job required that she be currently employed in the industry or have left it within six months.

Owens said that under the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, it was illegal for employers to use practices that "limit, segregate or classify" individuals in ways that limited or denied employment opportunities based on race, gender, color, religion, ethnicity or age. Practices that seem nondiscriminatory could violate these laws if they have a disparate impact on members of these protected classes.

Urban said it would be hard to prove the disparate impact of excluding unemployed applicants, but Helen Norton, an associate professor at the University of Colorado School of Law, disagreed and cited examples of how it could be done.

"This practice raises questions and concerns under current anti-discrimination law that deserve attention," she said.

Although Spriggs said women were less likely to be hurt by the practice, Fatima Goss Graves, the vice president for education and employment at the National Women's Law Center, suggested otherwise. She said women — who disproportionately leave the work force to give birth or provide care to sick loved ones — could well face the problem.

The commission will gather more information about the issue and might, in time, provide guidance to employers about the practice and suggestions on how to avoid any legal conflicts in job postings.

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