Bill Would Ban Discrimination Against Unemployed In Hiring

Sad but true, earlier this year the Equal Employment Opportunity Commission had to hold a public hearing because of a disturbing trend: several companies, nationwide, had been excluding unemployed applicants from hiring consideration. Their ads specifically stated that they would only consider employed job candidates, using phrases like “No unemployed candidates will be considered at all” and “Client will not consider/review anyone NOT currently employed, regardless of the reason.”

A new report from the National Employment Law Project (NELP) shows that unemployed workers continue to be excluded from consideration for job openings. As disheartening and discriminatory as this may be, it’s not illegal — yet.

The Fair Employment Opportunity Act of 2011 was recently introduced in the U.S. House of Representatives by Representatives Rosa DeLauro of Connecticut and Henry Johnson, Jr. of Georgia. The purpose of this law? To create a level playing field for unemployed job seekers by prohibiting employers and employment agencies from screening out or excluding job applicants solely because they are unemployed.

Although employers should understand that many high quality candidates were simply victims of this particularly severe recession, some are clinging to the outdated mindset that someone who was laid off must have been a poor worker or the weakest link.

As documented in NELP’s report, employers and staffing firms continue to expressly deny job opportunities to the unemployed. An informal NELP survey of heavily-trafficked job posting websites, including CareerBuilder.com and Indeed.com, found numerous job ads conspicuously stating that job seekers “must be currently employed.”

“For the millions of jobless Americans struggling to climb out of the deepest jobs hole in many decades, nothing can be more demoralizing than the double-whammy of losing a job and then learning they will not be considered for new positions because they are not currently working, ” said Christine Owens, NELP’s executive director.

“This practice is a perverse catch-22 that requires workers to have jobs in order to get jobs, and it means highly qualified, experienced workers who want and need work can’t get past the starting gate in the application process simply because they lost their jobs through no fault of their own,” Owens continued. “As a business practice, this makes no sense. It is debilitating to workers—particularly the long-term unemployed—and it hampers economic recovery.”

“In a tough job market, where workers are competing against tens and sometimes hundreds of others for every available job opening, it is unjust for employers to discriminate against those who are unemployed,” said Representative DeLauro, a co-sponsor of the legislation introduced today. “We have seen ample evidence that unemployed individuals are increasingly falling prey to discriminatory practices reducing their opportunities to be considered for a job. The Fair Employment Opportunity Act of 2011 would prohibit employers and employment agencies from discriminating against unemployed job seekers, and ensure that all Americans have the same opportunities for employment.”

Representative Johnson, also a co-sponsor of the bill, agreed: “Discrimination against the unemployed—especially the long-term unemployed—in job ads and hiring practices flies in the face of what we stand for as a nation: Equal opportunity for all. The Fair Employment Opportunity Act of 2011 will help us level the playing field and get people back to work.”

Job seekers already face an exceedingly difficult job search environment, with the latest data, released this week by the Bureau of Labor Statistics (BLS), showing nearly five unemployed workers for every one job opening as of May. June’s unemployment rate was at 9.2 percent. The jobs and unemployment crisis is far from over.

Nearly 6.3 million workers—over 44 percent of all unemployed—have been out of work for six months or longer. The average length of unemployment reached nearly 40 weeks, or over 9 months, in June. This new legislation would ban the exclusionary practices that are exacerbating the already serious long-term unemployment problem.

“There is … strong support for legislation to ensure that unemployed job seekers receive a fair shot at employment opportunities,” NELP’s Owens said. “We are hopeful that employers and workers, as well as lawmakers in both parties will work together to erase this arbitrary barrier to employment.

Comment by Valentino Martinez on July 25, 2011 at 11:15pm: Thanks for sharing Tim--

Your reportage of reportage about such discrimination against the unemployed is only the tip of the iceberg. Most in recruitment know it runs deeper with some employers who don't openly advertise that they discriminate. Rather, they do it quietly, with no fan-fair. It happens over time and is only recognizable when the dust settles and the jobs are filled.

So where do you stand on this issue? Say a client provides you with a job description, chit-chat, and says--and, "I will only consider gainfully employed superstars, who are affordable, local and available in two-three weeks"?

Comment by Valentino Martinez on July 25, 2011 at 11:24pm: ...Oh, my response to my question to such an employer would be: "I will happily look for and provide gainfully employed, highly qualified, affordable and local candidates--if they exist, are interested and available. I will also present similarly qualified candidates, who may be between jobs--and may even come from out-of-area, but are also selectively looking to join an outstanding employer like yourself."

Comment by Bert Shimabukuro on July 26, 2011 at 12:41am: Only hiring employed candidates makes about as much sense as only dating married people. That being said, the HR side of me hates more protected classes. If this passes, am I going to be required to track self declared unemployment status to prove I wasn't illegally discriminating against the unemployed?

I'll keep asking my candidates if they are immediately available for employment. I'll let my competition chase candidates already employed and watch their time to fill metrics increase.

Comment by Sandra McCartt on July 26, 2011 at 1:02am: I think this is one of those perhaps well intentioned, laws that is going to be a disaster for all concerned.

"no, Mr government official, I didn't turn her down because she has been unemployed for the last five years, her computer skills are five years out of date and she looks like her fashion consultant runs the thrift store".

"I turned her down because we found a more qualified candidate"

Now what?

Comment by Keith Plesha on July 26, 2011 at 9:28am: As Bert was eluding to, how is this going to be enforceable? Do I need to cover my back as he suggests by keeping a tally of those unemployed that we interview?

Obviously there are a few bad apples out there that will put out ads that read as Tim stated...those companies are opening their door for scrutiny. But what about the rest of us? It's all fine and dandy to say that you don't discriminate against those who are unemployed, but it should be fairly easy for us (especially if you have an ATS) to show that the person hired has better skills than the one unemployed (hopefully that is truly the case as I don't see the reasoning in specifically discriminating against the unemployed other than he/she being out of work for awhile and lacking in specific skills). Sometimes it's a fine line and most of the time it's pretty cut and dry in terms of the candidate selected.

The real problem is going to lie with the individuals who have been out multiple years due to being jaded by the economy. Those that have done next to nothing in the last several years because they were laid off are the first ones that are going to scream discrimination if this passes. I'm all ready hearing with a lot of folks that I've been talking to (not to mention all those lovely folks sharing their opinions in Linkedin groups). The people getting lost in the shuffle are those unemployed that have taken classes, worked odd jobs, or took a job that has nothing to do with their background. There is usually a big difference between those laid off that try to improve themselves and those who end up jaded and feeling sorry for themselves.

Comment by Rick on July 26, 2011 at 11:30am: We do recruit and hire the unemployed if they meet the needs of our client. It can really make your day when you place someone that has been off work a while and in need.

Personally I don’t think we need another unenforceable law on the books that will drive up costs on employers and create more government red tape or another government entity with another czar to run it. This will only reduce hiring, as someone will have to pay for all of this.

If the government wants to step in and help, cut a few of their bloated inefficient departments, take the money saved and offer employers financial incentives for hiring the long-term unemployed.

A carrot works much better than a whip!

Comment by Kim Ogles on July 26, 2011 at 12:24pm: I'm not usually in favor of additional government scrutiny and reporting....BUT the systemic practice of discriminating against the un or underemployed continues. If our recruiting community is unable to enfluence our employers and hiring managers, somebody sure should.

http://www.nytimes.com/2011/07/26/business/help-wanted-ads-exclude-...

Comment by Mike Rasmussen on July 26, 2011 at 4:10pm: The bottom line here. If you mistreat someone based on thier current employment status, then all other protected class environs may still apply. If you wish to be an employer of choice you better treat human beings and those looking for work with a fair shake. Irregardless of employment status - sometimes highly skilled workers have faced the economic dilemma - and wouldn't that be a shame if your company wound up on the wrong side of the word of mouth advertising or blog universe - what goes around comes around - and companies doing this DESERVE to be sued.