Could the Unemployed be the New Protected Class?
Denying employment opportunities to individuals because of their unemployed status may someday become unlawful discrimination. On September 12, 2011, President Obama introduced to the United States Congress the American Jobs Act of 2011 (the Jobs Act), which includes a provision entitled the “Fair Employment Opportunity Act of 2011” (the Proposed Act). Generally, the Proposed Act seeks to prohibit employers and employment agencies from disqualifying the unemployed from employment opportunities, either by failing to consider or hire them on the basis of their unemployed status or by publishing announcements for employment opportunities that indicate unemployed persons will not be considered.
In the context of private employers, the Proposed Act would be administered and enforced by the Equal Employment Opportunity Commission (EEOC), and claims would be subject to the procedural requirements of Title VII of the Civil Rights Act of 1964 (Title VII). Remedies for violations would also parallel Title VII for claims asserted by individuals who were not considered or hired because of their unemployed status, and would include potential liability for injunctive relief, back pay and attorneys’ fees. Employers who violate the Proposed Act through ads or job postings indicating that the unemployed will not be considered may be subject to a court order enjoining them from further violations, as well as adverse awards requiring payment of attorneys’ fees, costs and liquidated damages of up to $1000.00 for each day of the violation.
While the Proposed Act generally seeks to prohibit discrimination against the unemployed, it would permit employers to consider the reasons for a candidate’s unemployed status in assessing an individual’s ability to perform a job. Employers would also be allowed to consider an individual’s unemployment if preference for a candidate with recent employment in a similar or related job is consistent with the legitimate needs of the business.
While the Proposed Act is new, the interest in prohibiting potential discrimination against the unemployed is not. Indeed, the issue has received a lot of attention this year. Also known as the Fair Employment Opportunity Act of 2011, House Bill 2501 and Senate Bill 1471 were introduced in July and August of 2011, respectively. These bills also seek to prohibit discrimination against the unemployed. The pending House and Senate bills are notably broader than the Proposed Act in the scope of individuals protected. The Proposed Act would protect those individuals who do not have a job, are available for work and are searching for work when the action alleged to violate the Proposed Act occurred. The more expansive House and Senate bills, however, propose protection for a broader range of individuals by defining “status as employed” to include an individual’s present or past unemployment, regardless of the length of that period of unemployment.
In February 2011, the EEOC held a hearing on the issue of whether employers and employment agencies are excluding unemployed individuals from applicant pools. The Proposed Act and House and Senate Bills are primarily concerned with job creation and the economic impact of such alleged exclusions. In contrast, the EEOC hearing focused on the degree to which such unemployed individuals are being excluded from applicant pools, possible reasons employers and employment agencies may make such exclusions, and the impact of such exclusions on protected groups, such as women and racial minorities. Additionally, the commissioners and panel members examined whether existing equal employment laws might already protect unemployed persons from discrimination. While the Commission drew no conclusions during the hearing regarding the legality or scope of the practice of excluding the unemployed from candidate pools, it expressed concern for the potential disparate impact on multiple protected classes if the practice is used to screen candidates.
In addition to potential federal legislation, several states have also addressed discrimination against the unemployed. New Jersey enacted legislation in June that penalizes employers for job postings that show bias against the unemployed. This new statute does not create a private cause of action. It does, however, allow the New Jersey Department of Labor to impose civil penalties against employers who violate the statute. Other states, including New York, Michigan and Illinois, are considering similar or more expansive legislation.
In the current economy, the response to job postings can be tremendous, and excluding the unemployed from an applicant pool may be a tempting expedient. Given the current political climate, however, employers may want to review their screening practices and job postings, as well as the practices and postings of any employment agencies upon which they rely, and confer with their employment counsel to determine if these potential changes in the law, if passed, would impact their practices.