When Sony Ericsson needed new workers after it relocated its U.S. headquarters to Atlanta last year, its recruiters told one particular group of applicants not to bother. "No unemployed candidates will be considered at all," one online job listing said.
The cell-phone giant later said the listing, which produced a media uproar, had been a mistake. But other companies continue to refuse to even consider the unemployed for jobs - a harsh catch-22 at a time when long-term joblessness is at its highest level in decades. (See TIME's video "What It Took to Create a Job for One Bright Engineer.")
Refusing to hire people on the basis of race, religion, age or disability - among other categories - is illegal. But companies that turn away jobless people as a group are generally not breaking the law - at least for now.
Job seekers have long known, of course, that it's easier to land a job when you are still working. There are no hard data on discrimination against the unemployed. But there have been reports from across the country of companies' making clear in job listings that they are not interested in people who are out of work. Employment experts say other companies have policies of hiring only people with jobs - but do not publicly acknowledge their bias.
At an Equal Employment Opportunity Commission hearing this year, Christine Owens, executive director of the National Employment Law Project, declared that "excluding the unemployed" is "becoming business as usual." Owens testified about a 55-year-old California woman who had applied for a job as a software-systems engineer. The recruiter for the position was enthusiastic until she learned that the woman had been out of work for six months. At that point, she told the woman she could not forward her rÉsumÉ to the hiring company. (See TIME's video "Why Young Vets Have Trouble Finding Work.")
The apparent uptick in such incidents couldn't come at a worse time for the unemployed. The Great Recession has produced an unusually large number of long-term jobless. Forty percent of the nation's unemployed - some 4.4 million people - have been out of work for a year or more, the highest level since World War II. The long-term unemployed have far more difficulty finding work than people who have left the workforce more recently. The problem is worst for workers over 50, who often face age discrimination as well.
Some employers argue that they have a perfectly reasonable right to weed out the unemployed and that it is just good business. People who have lost jobs or have never been hired are less qualified as a group than those who are currently working, they say. People who are out of the workforce for a significant period of time may also have fallen behind in skills.
But advocates for the unemployed argue that in this economy there is no basis for negative inferences about people who are out of work. Many lost jobs for economic reasons or general corporate downsizing, not through any fault of their own. In a stronger job market, many would have found new jobs long ago.
These advocates also say that allowing companies to discriminate against the jobless is fundamentally unfair and threatens to condemn millions of Americans to permanent underclass status.
Unfair or bad policy, perhaps, but is it illegal? Federal civil rights laws do not protect the unemployed as a class, but some legal experts make a case that refusing to consider them for jobs is illegal. Policies that discriminate against jobless people, they argue, often discriminate against African Americans, Hispanics, Native Americans and disabled people - groups whose members are all more likely than average to be unemployed.
The Supreme Court has said that policies that appear to be neutral on their face can violate the Civil Rights Act of 1964 if they have a "disparate impact" on protected minority groups. But lawyers for employers claim that policies that discriminate against the unemployed do not have enough of a disproportionate impact on protected minorities to meet the high standard the Supreme Court has set for disparate-impact claims.
And they're probably right. Ending discrimination against the unemployed would most likely require new laws. In Congress, Representative Hank Johnson, a Georgia Democrat, has introduced the Fair Employment Act of 2011, which would amend the Civil Rights Act to make it illegal for employers to refuse to hire people simply because of their employment status.
In that respect, as in so many others, the states are starting to pull ahead of Washington. In March, New Jersey became the first state to adopt a law making it illegal to post job listings that make current employment a condition of applying or being hired. Several other states are considering similar laws.
Antidiscrimination law is tricky: there is no easy formula to determine which groups should be protected. As a nation, we have decided that race, sex, religion, national origin and disability should be protected classes, and we are getting there on sexual orientation.
Traditionally, the unemployed - who can, after all, give up membership in the group in an instant if they get a job offer - have not been regarded as a protected class. But as the Great Recession rages on and the plight of the long-term unemployed becomes more desperate, that may be about to change.
Cohen, a former TIME writer and a former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, appears every Monday.
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