While overall unemployment is 9 percent, the jobless rate is 15.7 percent among blacks and 11.9 percent among Latinos — disparities that persist regardless of educational attainment. African Americans are also overrepresented among the long-term unemployed, who are perhaps in the worst shape in terms of job consideration, accounting for 22 percent of people who have been out of work for more than a year.
“The chances of considering an ethnic- or racial-minority applicant are decreased by one-third when one excludes unemployed workers from the applicant pool,” said Spriggs, adding that the practice is also likely to limit opportunities for older workers and people with disabilities. The unemployed are “not a protected group, so the jurisdiction from the Department of Labor is questionable, but the potential for disparate impact is there.”
Don’t Believe the Hype?
There were some doubters in the room, however, about the extent of the problem. According to Fernan Cepero, state director of the New York State Society for Human Resource Management, which represents human resources professionals and recruiters, the practice is far from common.
“SHRM is unaware of a widespread practice or trend to exclude unemployed individuals from consideration for available jobs,” Cepero said. In his experience, employers are focused on finding the right people for the job and consider all qualified applicants.
While he maintained that exclusionary policies are poor business practice, Cepero acknowledged that they may occur because of an employer’s particular need. “When choosing an employee, HR and hiring managers are making a decision based on business necessity for certain skills,” he said. “A candidate who has been out of the work force for a time may have skills that are stale and obsolete compared with a candidate whose skills are fresh.”
James Urban, a partner at Pittsburgh’s Jones Day law firm, which provides counsel for more than half of the Fortune 500 companies, likewise said that he has never experienced an employer that ruled out unemployed applicants. “Are periods when an applicant has been unemployed scrutinized? They most certainly are,” he said, “but not with any intention of discriminating against any one person or group of people.”
The Next Steps
Although it’s unclear how widespread the practice is, EEOC Chair Berrien says that because it may lead to the exclusion of minority job seekers, the commission is weighing the testimony carefully. “Even an isolated incident of serious discrimination is not irrelevant to this commission and its responsibility to enforce the law,” she told The Root.
The EEOC hasn’t yet narrowed down its specific response because the matter is still under review, but there are a range of possibilities. Short-term options include employer training, outreach and education programs to prevent discrimination before it happens, and the publication of materials for the public that explain how the practice applies to civil rights law. In the longer term, the commission may consider modifying its legal process to include these claims and bring litigation to challenge the practice.
“Some of the earliest cases that the commission addressed involved the publication of help-wanted ads for ‘men only’ or ‘women only,’ ” Berrien said, stressing the EEOC’s work to change such practices decades ago. If that history is any indication, then the modern-day wave of barring the unemployed may be in for some changes.
Cynthia Gordy is The Root’s Washington reporter.