An Indianapolis restaurant posted a Craigslist job ad on Dec. 15 for a bar manager who must "be able to handle the guests, give outstanding service, ensure excellent product from the bar and food side." The ad lists one other important requirement: "Must be currently employed!"
There are more secretive and systemic forms of hiring discrimination, however, a government attorney and a staffing insider say.
Bob Rose, a supervisory trial attorney for the federal Equal Employment Opportunity Commission, told HuffPost he frequently comes across cases of companies using codewords in employer profiles that indicate to a staffing firm the particular race, gender or age they want in a candidate.
"A lot of it's under the radar," Rose said. "We had a case in Buffalo where a number of former full-time employees at a staffing firm came forward to tell us about how the agency complied with these discriminatory requests, using codewords for whites and codewords for blacks internally to mask some of it. If an employer submits a profile sheet to a staffing agency, we see them use a code on it so the employee who ends up filling the job knows, 'Oh, I can't send blacks,' or 'I can't send women.' There are all kinds of violations going on."
Rose said he has seen companies outsource hiring to staffing firms so as to more discreetly discriminate against potential candidates based on such factors as age, gender, race, disability and employment status.
A 53-year-old executive recruiter named Nick, who asked that his full name be withheld to protect his job, told HuffPost he has worked for major U.S. staffing firms since 1990. As an industry insider, Nick said, he became privy to the many ways companies and staffing firms sidestep labor laws.
"There's a lot of dirty stuff going on, a lot of hush-hush discrimination, I can assure you," he said. "As a recruiter, you get an HR director on the phone, and they tell you point blank, 'We want somebody in this age bracket, or this particular gender, currently has a job. We don't want to see a resume from anyone who's not working.' It happens all the time."
Fiscal year 2010 saw a record number of workplace discrimination complaints, but these behind-the-scenes exchanges between companies and staffing firms are difficult to prove, Nick said, because staffing firms can usually attribute their hiring choices to other factors. Companies also use codewords and terms, as Rose said, to describe the kinds of candidates they want without explicitly doing so.
"[A company] will say, 'We want somebody with small hands' for this administrative position, meaning they want an attractive woman," he said. "This is what's going on in every state, in every company -- the labor laws are being ignored. But there would have to be wiretaps or someone would have to get inside the company in order to really prove what's going on."
Nick said he left his job in June 2008 to start his own recruiting company, but the venture failed. Once he found himself looking for work again, he knew from his experiences as a recruiter that he was facing an uphill battle as an unemployed job applicant.
"I knew what they were doing. I expected it," he said. "It's nearly impossible to get a job unless you already have a job. Companies will view you, especially people over 50 like me, they view you as somebody that's gonna require more money, that's not gonna be productive, or that might have some personal problems, because if you were a good employee you would have never lost your job in the first place."
The staffing firm Rose led the race-based discrimination case against, SPS Temporaries of Buffalo, N.Y., along with two of its clients, agreed to a hefty settlement of close to $600,000 in damages because the evidence against them was so strong.
But nailing a company or staffing firm for discriminating against unemployed people is a little more difficult, Rose said, because there is no specific law that forbids it.
"There's no statute we enforce that would prohibit that on its face," he said. "My concern would be that it may be having a disparate impact on certain groups. For instance, unemployment rates for African Americans is twice that of whites, so if you're only gonna look at the resumes of people who are currently employed, it may have a disparate impact on a race or age or maybe even gender population."
Online job postings frequently specify that a candidate "must be currently employed" in order to be considered for a position, and headhunter Isang Inokon told HuffPost in December that he has trouble placing unemployed people in jobs because employers "want somebody who's wanted."
More than 6 million long-term unemployed job-seekers are left to guess why their applications don't earn them a phone call. But Judy Conti, a lobbyist for the National Employment Law Project, said she is confident that these discriminatory practices will eventually be brought to light.
"More often than not, when employers of any sort try to be too clever by half, they end up getting tripped up with the laws anyway," Conti said. "I'm quite confident that if this kind of scheme really gets out there, there will be really clever employment lawyers that figure out how to go at it."