Are companies excluding jobless from applying?

Sam Hananel

WASHINGTON — Are some companies weeding out job applicants just because they are unemployed?

After news accounts about the practice and requests from concerned lawmakers, the Equal Employment Opportunity Commission has jumped in, trying to figure out whether it’s a widespread tactic that could violate federal job discrimination laws.

Commissioners at an EEOC hearing last week said they are investigating whether excluding the unemployed may have a greater effect on blacks, Latinos and other ethnic minorities that tend to have higher jobless rates. There are no specific legal protections for the unemployed.

“The potential for disparate impact is there,” said William Spriggs, assistant secretary for policy at the Department of Labor.

Overall unemployment is 9 percent, with nearly 14 million people out of work. The jobless rate is 15.7 percent among blacks and 11.9 percent among Hispanics, according the Bureau of Labor Statistics.

Spriggs said the chances of an employer considering an ethnic minority are decreased by one-third if jobless applicants are excluded. The pool of disabled applicants would be reduced by nearly 50 percent, he said.

The EEOC, which enforces job discrimination laws, has not issued any guidance on the issue. But some on the five-member agency suggested that could be coming.

“I hope this gives our people in the field information to start thinking about a possible problem out there,” said Stuart Ishimaru, one of three Democrats on the commission. “For employers it raises serious question of liability if, in fact, there is a disparate impact.”

Spriggs said it would be difficult for the government to measure the problem because most job openings are not posted publicly. The Labor Department is aware of anecdotal reports that some recent company advertisements have discouraged the unemployed from applying.

He said officials are concerned the practice could hamper the government’s efforts to help millions of unemployed get back to work.

“It probably has a bigger impact in the current labor market” given the current unemployment situation, Spriggs said.

Helen Norton, a professor at the University of Colorado law school, said employers and staffing agencies have advertised jobs in fields from electronic engineers to restaurant and grocery managers with the explicit restriction that only currently employed candidates would be considered.

“Some employers may use current employment as a signal of quality job performance,” Norton said. “But such a correlation is decidedly weak. A blanket reliance on current employment serves as a poor proxy for successful job performance.”

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 later removed the restriction after media publicity.

Christine Owens, executive director of the National Employment Law Project, said anecdotal evidence from job postings, conversations with job seekers and her interviews with officials at job placement firms suggests there may be a growing trend of excluding unemployed applicants, regardless of their qualifications.

“It’s particularly significant that these representatives of staffing agencies have said there seems to be a growing practice,” Owens said.

Fernan Cepero, a spokesman for the Society for Human Resource Management, said it takes an average of 27 days for an employer to fill an open position, and even longer for high-tech positions. Because open positions mean lost productivity, “screening out the unemployed is unproductive,” he said.

Associated Press