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EEOC Asks: Are Employers Discriminating Against The Jobless?

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A Craigslist job ad posted Feb. 6 for a $25-per-hour customer relations position in San Francisco encourages men, women, and students to apply, "No Experience Required" -- as long as the applicant already has a job.

"Must be currently employed or recently employed," the ad specifies.

Three years into the recession, variations of the phrase "must be currently employed" are still appearing in job ads across various kinds of positions all over the web as employers are peppered with applications from a growing pool of long-term unemployed people. Robert Half Legal is running an ad on Monster.com for a "currently employed" defense attorney. Dough, a restaurant in San Antonio, Texas, advertised on Craigslist for pizza cooks who are either "currently employed or recently unemployed (1 to 4) months out."

The Equal Employment Opportunity Commission, which enforces U.S. laws prohibiting employment discrimination, held a public meeting Wednesday morning to discuss discrimination against the jobless. It's a question that some politicians and members of the media don't seem to take seriously, deriding the jobless as lazy or unqualified even though there are 4.7 laid-off workers for every job opening.

James Urban, who represents and counsels employers as a partner at Jones Day law firm, told the EEOC Wednesday that he does not believe that such discrimination is occurring.

"I thought perhaps that I was missing something, so I reviewed and have brought with me the 'help wanted' sections for this past Sunday from my hometown newspaper and several other major metropolitan papers," he said. "I found not one single advertisement in any of these publications stating that the unemployed need not apply. I haven't discovered anything remotely close to such a statement. This all is consistent with my personal experience that employers in most all circumstances are looking to hire the best candidate for the position that is being filled and, to that end, solicit, welcome and consider all qualified candidates regardless of their employment status."

But Helen Norton, an associate professor at the University of Colorado School of Law, said she has seen ads for a "wide range of jobs" that require an applicant to be currently employed, including ads for 'freight handlers, restaurant managers, sales representatives and other salespersons, litigation associates, mortgage underwriters, electrical engineers, apartment maintenance technicians, and executive assistants."

Citing previous HuffPost articles, Norton told the EEOC that these current-employment requirements may be vicariously discriminating against certain protected groups of people, including minorities, the disabled and the elderly, since those groups have higher unemployment rates than the rest of the population.

"Employment practices that disproportionately disadvantage protected-class members without any meaningful relationship to successful job performance may sometimes conceal an employer's intent to discriminate," she said in her testimony. "Even absent an employer's discriminatory intent, employment practices that impose a disparate impact often reflect unexamined assumptions and stereotypes about the skills and capabilities that predict successful job performance."

While it is not currently illegal to weed out unemployed job applicants in most states, New Jersey recently introduced a law that would fine employers up to $10,000 for posting job ads that explicitly discriminate against the jobless. Wednesday's meeting marked the first time the EEOC has publicly examined the issue.

"Throughout its 45 year history, the EEOC has identified and remedied discrimination in hiring and remains committed to ensuring job applicants are treated fairly," Chair Jacqueline A. Berrien said. "Today's meeting gave the commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools."