EEOC Probes Discrimination Against Unemployed Workers in Hiring

End DiscriminationDiscriminatory practices that bar unemployed workers from consideration for jobs are the subject of a new inquiry launched this week by the Equal Employment Opportunity Commission (EEOC).  Responding to reports of what EEOC Chair Jacqueline A. Berrien called "the emerging practice of excluding unemployed persons from applicant pools," the EEOC convened a public meeting Wednesday to hear testimony on the issue from employment experts and worker advocates.

The practice of employers, recruiters and staffing firms discriminating against unemployed job-seekers in the hiring process is an issue we have helped bring to light here at with the help of outraged jobless workers who have contacted us to describe their own experiences.

Testifying at the session, Christine Owens, executive director of the National Employment Law Project (NELP) and a member of the team, said that practices barring the unemployed from job availabilities have been growing around the country — and place a disproportionate burden on older workers, African Americans, and other workers facing high levels of long-term unemployment.


“There is a disturbing and growing trend among employers and staffing firms to refuse to even consider the unemployed for available job openings, regardless of their qualifications,” said Owens. “  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. At a time when we should be doing whatever we can to open up job opportunities, it is profoundly disturbing to see deliberate exclusion of the jobless from work opportunities. The National Employment Law Project commends the Equal Employment Opportunity Commission for examining this issue,” she said.

Owens and other witnesses presented numerous examples of job postings and recruitment advertisements explicitly excluding people due to their status or duration of unemployment.  Helen Norton, Associate Professor at the University of Colorado School of Law, detailed how employers and staffing agencies have publicly advertised jobs in a wide variety of fields -- ranging from electronic engineers to restaurant and grocery managers to mortgage underwriters -- with the explicit restriction that only currently employed candidates will be considered. 

“The use of an individual’s current or recent unemployment status as a hiring selection device is a troubling development in the labor market,” said Fatima Goss Graves, Vice President for Education and Employment of the National Women’s Law Center. She added that this practice “may well act as a negative counterweight” to government efforts to get people back to work. And she said that women, particularly older women, are disproportionately affected by this exclusionary restriction.

Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, explained that denying jobs to the unemployed can also have a disproportionate effect on members of certain racial and ethnic minority communities due to the higher unemployment rates for African-Americans, Hispanics and Native Americans.

That testimony was supported by information presented by Dr. William Spriggs, Assistant Secretary of Labor for Policy, who noted that excluding the unemployed from consideration for job openings would also likely limit opportunities for older applicants as well as persons with disabilities.

Despite the evidence presented at the session, other witnesses, affiliated with employers, seemed to be not overly concerned.  James Urban, a partner at the Jones Day law firm and an attorney for employers, said he doubted that the problem was widespread.  And Fernan Cepero, with the Society of Human Resource Professionals, said that his organization is not aware of this practice being in regular use.

In her testimony, NELP's Christine Owens summarized the stories of several unemployed women who had shared their experiences with discrimination due to their jobless status through

While refusal to consider the unemployed is sometimes overtly noted in ads, at NELP we also hear regularly from unemployed workers—mostly older workers—who despite years in the labor force and significant directly relevant experience are nevertheless told they will not be referred or considered for employment, once recruiters or potential employers learn they are not currently working.

That happened to 53‐year‐old Michelle from Illinois, who wrote us that after working successfully for 19 years as an IT help supervisor, she was laid off in 2008 due to the downturn. Many months into her job search, a headhunter contacted her, excited about her qualifications for a position he was retained to fill. The excitement faded, however, when he learned she had been unemployed for more than a year. As Michelle put it, “When he realized this, he was very apologetic, but had to admit to me that he would not be able to present me for an interview due to the ‘over 6 month unemployed’ policy that his client adhered to.” The headhunter, she told NELP, explained that his client expressly prohibited him from referring workers who had been unemployed for six months or more. When we last spoke to Michelle, she was still unemployed, had exhausted all unemployment benefits, was restructuring her mortgage, and had applied for SNAP (food stamps) and welfare—a first for her.

Kelly a 45‐year‐old former operations analyst in Colorado, wrote describing a similar experience. She responded to a local staffing firm’s November 2010 posting for a financial systems analyst experienced in implementing a software package she had put in place in her previous job. The agency called her immediately but after learning of her unemployment, the recruiter’s enthusiasm cooled. The recruiter told Kelly that she would submit her resume but that her “long employment gap was going to be a tough sell.” Kelly later followed up to express her continuing interest but was not called for an interview.

Similarly, 44‐year‐old Angela of Texas, an experienced pharmaceutical sales rep who had posted her resume online, wrote to share an email she had received from an executive recruiter for a bio‐pharmaceutical company seeking a specialty sales rep. The recruiter had sent the email after seeing her resume—but the outreach was of little value to her, since the email included an express caveat, required by the employer, that “Candidates must be currently employed in pharmaceutical sales, or have left the industry within the last six months.”

Finally, there’s 55‐year‐old Ginger from California, who wrote to tell us about receiving a call from a recruiter for a six‐month contract position as a software systems engineer. The recruiter thought she was a good fit for the job but upon learning of her unemployment, told her she could not submit her resume because she had not worked in the past six months.

In a statement, NELP noted:

These barriers to employment come as the jobs crisis persists for millions.  Although the official unemployment rate dipped again in January, employers added only 36,000 jobs to their payrolls and there are still roughly five officially unemployed job seekers for every new job opening.  There are 2.2 million fewer jobs overall today than ten years ago, despite the fact that the working-age population has grown by almost 10 million; the economy would need to add roughly 11 million jobs just to return to employment levels at the start of the recession.  NELP estimates that throughout 2010, 3.9 million unemployed workers exhausted all of their unemployment benefits without finding new work.

Owens urged the EEOC to explore every available legal option to prevent discrimination against the unemployed from spreading, and she urged state fair employment agencies, Congress, state legislatures and employers themselves to raise awareness and explore remedies to these trends.

“The dire job market has made it essential that Congress and the administration maintain the most robust program of unemployment insurance benefits in the nation’s history. But what’s needed most—and what all unemployed workers most want—is jobs. Meeting that need requires sound public policies that help encourage job growth and a willingness on the part of employers to make job openings equally available to all qualified job seekers, without regard to their current employment status. We have to put an end to employer discrimination against the unemployed if we are going to get the economy back on track,” she said.

Losing your job is devastating enough.  In this economy, looking for a new job when you're unemployed is already the hardest job of all.  But when employers discriminate against you and bar you from being hired because you are unemployed... well, as my dad used to say - there ought to be a law.

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