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Originally published February 16, 2011 at 9:09 PM | Page modified February 17, 2011 at 9:54 AM

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Unemployed need not apply, some firms say

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

McClatchy Newspapers

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

People testified before the U.S. Equal Employment Opportunity Commission (EEOC) on Wednesday about what some said is a growing trend of employers refusing to consider hiring the unemployed.

The practice has surfaced in electronic and print postings with language such as "unemployed applicants will not be considered" or "must be currently employed."

"Excluding unemployed workers from employment opportunities is unfair to workers, bad for the economy, and potentially violates basic civil-rights protections because of the disparate impact on older workers, workers of color, women and others," Christine Owens, executive director of the National Employment Law Project, testified.

Several examples of such help-wanted ads were offered: A Texas electronics company said online that it would "not consider/review anyone NOT currently employed regardless of the reason"; an ad for a restaurant-manager position in New Jersey said applicants must be employed; a phone manufacturer's job announcement said "No Unemployed Candidates Will Be Considered At All," according to Helen Norton, associate professor at the University of Colorado School of Law.

Even if the companies pull the language from their ads, many still discriminate against the unemployed, Owens said.

Evidence about how widespread the practice may be is sketchy. But reports of it have caught the attention of regulators, lawmakers and advocates for the unemployed.

In one prominent report last year, an advertisement from Sony Ericsson, a global phone manufacturer that was recruiting workers for a new Georgia facility, was restricted to those currently employed.

The company removed the restriction after media publicity.

Members of Congress contacted the Department of Labor and the EEOC 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 subject to civil-rights protections.

Several witnesses testified at EEOC headquarters in Washington, D.C., 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.

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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.

Although the nationwide unemployment rate is 9 percent, the jobless rate is 15.7 percent among blacks and 11.9 percent among Hispanics, according the Bureau of Labor Statistics.

"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.

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, 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 had 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.

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.

Material from The Associated Press

and Los Angeles Times is included

in this report.

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