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.

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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.

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"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.

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.

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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.