Unemployed seek protection against job bias

WASHINGTON - October 9, 2011

But Forte, a 55-year-old from Cleveland, says a job recruiter for a temporary agency told her the company wouldn't consider her because she had been out of work too long. She had lost her job driving a bus.

"They didn't even want to hear about my experience," said Forte. "It didn't make sense. You're always told just go out there and get a job."

Forte, scraping by now as a part time substitute school bus driver, is part of a growing number of unemployed or underemployed Americans who complain they are being screened out of job openings for the very reason they're looking for work in the first place. Some companies and job agencies prefer applicants who already have jobs, or haven't been jobless too long.

She could get help from a provision in President Barack Obama's jobs bill, which would ban companies with 15 or more employees from refusing to consider - or offer a job to - someone who is unemployed. The measure also applies to employment agencies and would prohibit want ads that disqualify applicants just because they are unemployed.

But Obama's bill faces a troubled path in Congress, as Republicans strongly oppose its plans for tax increases on the wealthy and other spending provisions. Should the bill fail, Democrats are sure to remind jobless voters that the GOP blocked an attempt to redress discrimination against them at a time when work is so hard to find.

The effort to protect the unemployed has drawn praise from workers' rights advocates, but business groups say it will just stir up needless litigation by frustrated job applicants. The provision would give those claiming discrimination a right to sue, and violators would face fines of up to $1,000 per day, plus attorney fees and costs.

"Threatening business owners with new lawsuits is not going to help create jobs and will probably have a chilling effect on hiring," said Cynthia Magnuson, spokeswoman for the National Federation of Independent Business. "Business owners may be concerned about posting a new job if they could face a possible lawsuit."

Sally Davenport, a spokeswoman for FedEx in Memphis, said the company has no policy barring the unemployed from seeking a job.

"We interview and hire the candidates best qualified for the job," she said. "There was obviously confusion on the part of the temp agency."

A survey earlier this year by the National Employment Law Project found more than 150 job postings on employment Web sites such as CareerBuilder.com and Monster.com requiring that applicants "must be currently employed" or using other exclusionary language based on current employment status.

"It's really alarming to us that employers continue to ignore the strong public condemnation of this practice," said Maurice Emsellem, the legal group's policy co-director.

The issue has gained more prominence as the unemployment level remains stuck over 9 percent and a record 4.5 million people - nearly one-third of the unemployed - have been out of work for a year or more. And older workers, like Forte, often struggle to find new jobs.

"There's a flood of workers looking for jobs right now and unfortunately, this is a convenient way to streamline the process" by employers, Emsellem said. Some companies might assume people who have been out of work for several months may not be stellar performers, he said.

The practice has also drawn concern from the Equal Employment Opportunity Commission, where members at a hearing earlier this year said barring unemployed people from employment may have a greater effect on blacks and Hispanics with higher jobless rates.

Ron Cooper, a former commission general counsel during the Bush administration now in private practice, said he thinks the problem is being overblown.

"People, I'm sure, are looking for shortcuts to trim the applicant pool that they're looking at," Cooper said. "But I've never heard of this as a top-shelf criteria for people making those decisions."

Last month, the job search Web site Indeed.com announced it would not accept any job ad that seeks to exclude the unemployed.

"Our policy is to exclude job listings that do not comply with federal or local laws related to discriminatory hiring practices as well as job listings that discriminate against the unemployed," said Indeed.com spokeswoman Sophie Beaurpere.

Forte says that in her case, the job recruiter told her the company was not considering applicants who have been out of work longer than six months.

"Here I am, a seasoned worker. I didn't have six months, but I had eight years of experience," she said.

Ohio Sen. Sherrod Brown, a Democrat who has sponsored a separate bill protecting the unemployed, said he understands that employers need the right to hire according to their needs and to factor in work experience.

"But they shouldn't have the right to discriminate from the start and preemptively deny qualified workers a fair chance at a job they need," Brown said.

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