With an estimated 13.7 million Americans out of work, the federal government is investigating reports that some companies are saying in job ads that they won't consider applicants who are unemployed. There are no statistics on the extent to which this is happening, only anecdotal reports, but the Equal Employment Opportunity Commission's interest suggests companies should tread carefully. While there's no law that prohibits employers from refusing to consider job applicants who are unemployed, the EEOC is considering whether the practice discriminates by having a "disparate impact" on certain groups. At an EEOC hearing in February, witnesses argued that excluding the unemployed could have an outsized effect on groups including blacks, Hispanics, women, older workers and the disabled.

Lawyers say the inquiry about policies on unemployed applicants is similar to the EEOC's approach to hiring practices such as credit checks and criminal records checks.

"They have brought significant claims on those theories, and I think that's where the concern is for employers," says Amy McAndrews, a labor and employment attorney at the law firm of Pepper Hamilton."When the EEOC seizes onto one of these issues, chances are they're going to follow through and find a company or companies to make an example of." She notes that in December, the EEOC filed a lawsuit against Kaplan Higher Education, charging that its use of credit checks discriminated against black applicants.

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Susan Kelly

Susan Kelly is a business journalist who has written for Treasury & Risk, FierceCFO, Global Finance, Financial Week, Bridge News and The Bond Buyer.