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Legal Updates

Employers Face Growing Trend Of Laws Targeting Discrimination Against The Unemployed

As the economy has continued on an uncertain course in the wake of the Great Recession, many downsized workers have found themselves out of work for months or even years at a time.  In response to such concerns, a number of states and municipalities have enacted measures over the past few years intended to protect unemployed job candidates from being discriminated against on that basis.

While many employers may view long stretches of unemployment as a “red flag,” a sign that perhaps their job skills have stagnated or become outdated, in certain jurisdictions (discussed below), employers now need to ensure that their hiring practices do not unlawfully discriminate against the unemployed.  Further, all employers should pay close attention to future developments in this area.

Recent Enactments

Thus far, four cities and two states have enacted legislative measures intended to protect unemployed job applicants.  As noted below, some of these measures simply prohibit job advertisements that indicate that current employment is a prerequisite, while others affirmatively restrict employers’ ability to take employment status into account in hiring decisions.

  • Madison, Wisconsin.  Last December, Madison, Wisconsin enacted an ordinance prohibiting employers from (i) discriminating against job applicants based on their unemployed status, or (ii) publishing any job advertisement that indicates a preference for applicants who are currently employed.  (The ordinance, however, expressly does not restrict an employer’s ability “to inquire into, or to consider or act upon the facts and circumstances” resulting in an applicant’s unemployed status.)  The Madison ordinance permits an aggrieved individual to file a complaint with the municipal Equal Opportunities Commission for monetary and other relief.
  • New York City.  In June of last year, the New York City Human Rights Law was amended to prohibit employers from (i) “bas[ing] an employment decision … on an applicant’s unemployment,” unless an employer can demonstrate a “substantially job-related reason for doing so”; and (ii) publishing a job advertisement “stating or indicating” that current employment is a prerequisite for a position.  The ordinance creates a private right of action, through which a successful plaintiff may recover compensatory and punitive damages as well as attorneys’ fees.
  • Washington, D.C.  A Washington, D.C. ordinance (known as the “Unemployed Anti-Discrimination Act of 2012”) similarly prohibits employers from (i) refusing to consider or hire job applicants on the basis of their unemployed status, and (ii) publishing an advertisement or announcement for a job vacancy “stating or indicating” that unemployed individuals will not be considered for the position.  The D.C. ordinance, however, does not establish a private right of action for violations of the law.  Instead, aggrieved individuals must seek enforcement of the ordinance through the D.C. Office of Human Rights.
  • Chicago.  Under an ordinance enacted in 2012, Chicago prohibits employers from using “an advertisement for, or other posting of, any job opportunity that requires the applicant for the position to be employed.”  The ordinance, however, does not prevent employers from taking applicants’ employment status into account in hiring decisions.
  • New Jersey And Oregon.  Finally, both New Jersey and Oregon have enacted statutes (in 2011 and 2012, respectively) that, like the Chicago ordinance, prohibit employers from using job advertisements that list current employment as a prerequisite.  But these laws do not restrict employers from considering applicants’ employment status.

These recent measures raise a number of seeming ambiguities that the courts ultimately may need to resolve.  For instance, it is unclear what employers in New York City will need to show in order to establish a “substantially job-related reason” for taking an applicant’s current employment status into account.

Similarly, as to the Madison and D.C. measures, there may not be a clear line between, on the one hand, declining to hire an applicant based on his or her unemployed status and, on the other, merely considering the circumstances that resulted in the applicant’s unemployment.

Finally, with regard to the New York City and D.C. ordinances, plaintiffs’ lawyers may argue that job advertisements that do not explicitly state that current employment is a prerequisite for a position nonetheless somehow improperly “indicate” that unemployed candidates will not be considered.

Proposed Measures

In addition to these recent enactments, a number of similar measures have been proposed at both the federal and the state level.

Specifically, in 2011, President Obama announced his support for proposed federal legislation that would amend Title VII to prohibit discrimination against unemployed job applicants.  While the proposed measure died in Congress, the Obama Administration has continued to press for such protections.  In this regard, at the President’s prompting, top executives of a number of large U.S. corporations, including Apple, EBay, 20th Century Fox, and Walt Disney, signed a voluntary pledge earlier this year not to discriminate against applicants who have been out of work for extended time periods.

At the state level, proposed laws aimed at protecting unemployed job applicants were introduced in nine state legislatures (Florida, Iowa, Maine, Massachusetts, Minnesota, New Hampshire, New York, Pennsylvania, and Virginia) during 2013.  Some of these proposed measures would merely prohibit job advertisements that list current employment as a prerequisite, while others would expand state employment discrimination laws to encompass unemployed job applicants.  (The proposed Massachusetts legislation includes both of these elements.)

Recommendations For Employers

In light of these recent developments, we recommend that employers:

  • In consultation with experienced employment counsel, revise their job advertisements, job application forms, employee handbooks, and related documents as necessary to comply with any applicable laws protecting unemployed applicants;
  • Ensure that all employees involved in recruiting, interviewing, and hiring (including managers and HR personnel) are trained as to the requirements of any applicable laws; and
  • Closely monitor future developments in this area.

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Please don’t hesitate to contact us if you have any questions regarding laws protecting unemployed job applicants or any other hiring issues.  We would welcome the opportunity to assist you.