The Unemployed Need Not Apply

EDITORIAL

Published: February 19, 2011

The Federal Reserve is projecting unemployment to continue at or near 9 percent for the rest of the year. That is 13.9 million Americans out of work. Here is more grim news: Barriers to employment for jobless workers may be even higher than previously thought.

Editorial Series

• Jobs and Unemployment

As the Fed updated its forecast last week, the Equal Employment Opportunity Commission held a forum on discrimination against unemployed job seekers. Members of Congress had urged the commission to explore the issue, after reading press reports of numerous instances in which employers and staffing agencies refused to consider the unemployed for openings.

The message — “the unemployed need not apply” — has at times been explicitly stated in job announcements. In other cases, unemployed job seekers have reported verbal rejections after a recruiter or employer learned they were not currently working.

One of the questions for the E.E.O.C. is whether excluding unemployed applicants is illegal. Jobless workers are not specifically protected by antidiscrimination laws, but various laws outlaw hiring bias on the basis of sex, race, national origin, religion, age and disability. Since African-Americans, older workers — especially older women — and disabled workers have been hit particularly hard in the downturn, discriminating against unemployed people in those groups may violate the law.

Take African-American workers. They make up 12 percent of the work force, but 20 percent of the unemployed. Even college-educated black Americans are far more likely than their white peers to be unemployed.

Another question for the E.E.O.C. is whether it is acceptable for employers to use current employment as a proxy for relevant experience, or as an expedient to screen applicants. Testimony at the forum by Helen Norton, associate professor at the University of Colorado Law School, rebutted those and other possible justifications. Current employment is not relevant to jobs that provide on-the-job training. And even for jobs that require up-to-date skills, an interview or a test would be a more accurate and less discriminatory way to evaluate a candidate’s qualifications.

Simply excluding unemployed workers also excludes candidates who may have been employed until recently as well as those who have used a period of unemployment to receive additional training or education.

The E.E.O.C. deserves credit for taking on the issue. As it studies the situation, it should make clear to employers that discriminating against the jobless could be illegal. As Ms. Norton rightly noted in her testimony, the law must seek “to ensure that access to job opportunities is free from discrimination in tough economic times as well as good.”