Jacqueline Berrien, chair of the Equal Employment Opportunity Commission, says that the calls and e-mails started trickling in last summer. Members of Congress passed along complaints they’d received from frustrated constituents. Advocacy groups sent examples of peculiar help-wanted ads and news reports. All had the same concern.
Across the country, it seemed, employers and recruitment firms were outright rejecting people seeking jobs … because they needed jobs. Whether through advertisements immediately disqualifying the jobless with phrases such as “Must be currently employed,” or through recruiters rebuffing workers upon learning their unemployed status, the practice raised questions for the EEOC, which enforces laws against workplace discrimination based on race, national origin, sex, color, religion, age and disability.
The unemployed, however, are not in a federally protected class.
“The basic question about this was, is there any problem from a legal standpoint?” Berrien told The Root in an interview. “The long-standing interpretation of Title VII of the Civil Rights Act of 1964 is that a practice that is neutral on its face might violate the law if it has a harmful disparate impact on legally protected groups.”
Out of Work, Out of Luck
The EEOC recently held a hearing to shed light on the issue. After similar events on the damaging effects of different hiring procedures, including an October meeting on employers’ use of credit ratings and one in November concerning older workers, the commission is now deciding what, if any, action should be taken.
Although there are no official data on the frequency of the practice, several experts at the hearing offered anecdotal evidence that barring the unemployed from applicant pools is indeed an emerging trend. A Texas electronics company’s online ad flatly stated that it would “not consider anyone not currently employed regardless of the reason.” A posting for a New Jersey restaurant manager required that applicants “must be currently employed” — stipulations that are on the rise, according to Christine Owens, executive director of the National Employment Law Project, which advocates on behalf of low-wage and unemployed workers.
“Employers or staffing firms questioned about such ads typically pull the ads or delete the exclusionary language,” Owens testified, “but that does not signal that they will not apply the exclusion in the selection process.” She said that NELP also hears regularly from unemployed workers who are contacted about jobs, only to be told that they will not be referred once recruiters find out that they are not working.
“Some employers may use current employment as a signal of quality job performance,” says Helen Norton, associate professor at the University of Colorado School of Law. “But such a correlation is decidedly weak, as there are many reasons one might be unemployed that have nothing to do with job performance.”
Potential Discrimination at Work
Other experts testified that screening out unemployed job candidates not only is ineffective but, particularly in the context of a significant jobs crisis, also disproportionately affects groups hit hardest by unemployment.
“When employees exclude the unemployed from the applicant pool, they are more likely to be excluding Latinos and African Americans from consideration because Latinos and African Americans have much higher unemployment rates,” said William Spriggs, assistant secretary for policy at the U.S. Department of Labor.