MICHEL MARTIN, host: Now to matters of personal finance. As the nation's unemployment rate hovers around 9.2 percent, many out of work Americans are flocking to sites like Monster.com and even Craigslist to try to land a job. But they might be shocked to find a certain qualification on more than a few postings. Some employers are requiring applicants to already be employed before they will even consider their resumes. That's according to data collected by the National Employment Law Project, or NELP.

That's a not-for-profit that conducts research and advocacy on behalf of low wage and unemployed workers. NELP says excluding the unemployed from a hiring process is a form of discrimination.

Here to tell us more about that is Christine Owens. She is the executive director of NELP. Thanks for joining us.

CHRISTINE OWENS: Thanks for having us.

MARTIN: Also with us for additional perspective is attorney Randy Coffey. He is a partner at Fisher and Phillips. That's a national law firm that represents employers in workplace legal matters, which includes their hiring practices. Thank you so much for joining us as well, Mr. Coffey.

RANDY COFFEY: Glad to be here.

MARTIN: So, Christine Owens, how widespread is this? And is this something new?

OWENS: It's very hard to judge exactly how widespread it is. We know that just from this snapshot sample we did at looking websites over a period of a few weeks, that we picked up something like 150 ads that specifically said must be currently employed or recently employed. You have to assume that that's sort of the tip of the iceberg, that if employers and employment agencies are explicitly advertising this exclusion, that many are applying it without advertising it, as well. So we assume it's fairly widespread, but it's really hard to judge.

MARTIN: Was there any particular pattern to the kinds of workplaces that were employing this screening tool? Were there any particular sectors or occupational profiles where this seemed to be more prevalent?

OWENS: No. And that's one of the things that's really remarkable about it. We've seen them in all kinds of jobs, food service positions, paralegals, forklift operators and the like all over the country, all skill levels, all salary levels, jobs that require maybe some recent skills, but not necessarily deeply current skills, and jobs that are not necessarily that skilled to begin with. But the restriction has still been applied.

MARTIN: Randy Coffey, why would an employer feel that this is a good tool to screen applicants?

COFFEY: Well, first, I think the extent to which this occurs is vastly overstated. But at least to answer your question, conceivably, an employer might say, gee, we have such a sheer number of applications, and it may be used simply as a proxy to screen out some of the candidates.

Others might think that in a tough economy, businesses may keep their top performers. But I would tell you, in 25 years of doing this, I've never had a client who uses this as a screening device.

MARTIN: I was going to ask you that. So, you've never seen a case like this. You've never litigated a case like this. You've never had a client come to you and ask you to defend this particular practice.

COFFEY: I have not. And that said...

MARTIN: Well, what do you make of Christine's information, just scanning help wanted ads?

COFFEY: Well, as NELP's paper itself says, they don't know how widespread this is. They conducted an informal survey and they cite only a few ads out of tens of thousands of ads and then conclude that it could be more extensive than their limited sample, and I just don't see this.

MARTIN: If you're just joining us, this is TELL ME MORE, from NPR News.

We're talking about why some employers - and we don't know how many - are saying that they're refusing to consider unemployed people for open positions. Our guests are attorney Randy Coffey. That's who was speaking just now. He's with the law firm Fisher and Phillips, a national law firm that represents employers in workplace legal matters.

Also with us, Christine Owens of the National Employment Law Project, or NELP. This a group that's brought this practice to light. Christine Owens, what about Mr. Coffey's point? He says that this might be happening, but it's probably rare.

OWENS: I don't think it's rare. I mean, again, I would say we don't have any real idea of what the absolute incidence is. But you can't prove a negative just because you go to a website and you don't see these ads. I mean, employers don't advertise no blacks need apply or no women need apply. But we know there are cases that have been litigated in recent years in which discrimination on prohibited bases still occur.

MARTIN: Do you think this is discrimination? And if so, why? I don't know that the unemployed as a group are a protected class. I don't think that they are.

OWENS: They are not.

MARTIN: I know that there's legislation. Representatives Rosa DeLauro and Henry Johnson have introduced the Fair Employment Opportunity Act to address this problem. But it's not a protected class right now.

OWENS: It's not a protected class. And I would call it exclusion. I'm careful about how I use that term, discrimination. On the other hand, I think there are some key similarities, here, that this economy, most people who are unemployed are unemployed through no fault of their own, and in fact can't collect on insurance benefits unless you lost your job through no fault of your own.

As Mr. Coffey himself said, this is a rough proxy - this screening practice is a rough proxy for qualification. People can't even get past the starting gate if they're unemployed. So while I would say it's analogous to discrimination, it's not a protected class.

MARTIN: Well, two questions, Mr. Coffey. One is the data does demonstrate that some groups are experiencing unemployment more profoundly than others. For example, the national unemployment rate is, what, around 9.2 percent. Among Latinos, it's 11.6 percent, among African-Americans, 16.2 percent. Could you make an argument that this is teetering into that range?

COFFEY: There certainly is a societal unemployment problem. However, I don't think that employers utilizing this as a screening device, which, you know, I don't think - as Ms. Owens has said - that there's really any data showing the frequency of that. There's lots of speculation about it. I just don't think that that affects the selection of individuals for jobs.

Now, the problem, of course, is, on the individual level, having unemployment this high can be a terrible tragedy for individuals. And we as a society obviously need to do something to fix the unemployment problem. But what NELP has proposed here and the legislation that's been introduced in Congress is a solution looking for a problem, because I just don't think that the problem exists.

MARTIN: Before I let each of you go, I wanted to ask, how would you recommend that someone navigate this? Mr. Coffey, why don't I start with you? I know that your practice is assisting employers in these matters.

COFFEY: Sure.

MARTIN: But do you happen to have any advice for someone who encounters this in an area that he or she, an applicant is interested in? And the ad explicitly says I won't even consider you. Do you have some advice?

COFFEY: Well, I think I would do two things. One is I would make sure to find something in the time where I'm looking for a job to keep me active that I can put on my resume to indicate that I've been actively doing something. Secondly, I would send a short and to-the-point cover letter explaining the situation. Is it because you were fired for fighting or theft or something of that nature? Or was it because the economy was bad and the company you worked for went out of business? Those things make a lot of difference.

MARTIN: Christine Owens?

OWENS: Well, I agree with Mr. Coffey that the applicants should be persistent and try to get a look at his or her application, regardless of what the posting might say. But I would also, to your point, Michel, about the fact that if someone is a member of a protective class and has encountered this practice, I think it's worth following up with the EEOC and finding out if it's interested in taking a look at the practice.

MARTIN: Christine Owens is the executive director of the National Employment Law Project. That's a not-for-profit that conducts research and advocacy on behalf of low-wage and unemployed workers. She was nice enough to join us here in our Washington, D.C. studios.

Randy Coffey is a partner at Fisher and Phillips. That's a national law firm that represents employers in workplace legal matters. And he was kind enough to join us from member station KCUR in Kansas City, Missouri. I thank you both so much for joining us.

OWENS: Thank you.

COFFEY: Thank you, Michel.

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