Striking Down Discrimination Against the Unemployed

by Michael Haberman on September 22, 2011 · 5 comments


I wrote this post almost a year ago Does Unemployed = Unqualified? Refusing to Hire the Long-Term Unemployed. I was a bit ahead of the curve in noting what was going on in the hiring/not hiring world. You may want to click on it and read it to fully understand what is happening today. Because of poor judgment by some hiring managers we all may have ONE MORE PIECE OF LEGISLATION we have to deal with. The President has introduced legislation to strike down discrimination against the unemployed. He presented the American Jobs Act, which includes the Fair Employment Opportunity Act of 2011 which was also entitled “Prohibition of Discrimination in Employment on the Basis of an Individual’s Status as Unemployed,” which aims to prohibit employers and employment agencies from discriminating against unemployed job-seekers. According to the law firm Seyfarth Shaw “If passed, the Act would essentially create a new protected class under Title VII; namely, the unemployed.” They further state:

The Act defines the “unemployed” as individuals who do not have jobs but who are available and searching for work. Under the proposed Act, it would be an unlawful employment practice for employers with 15 or more employees and employment agencies to publish advertisements or announcements for jobs with provisions indicating that an individual’s status as unemployed will disqualify him or her for any employment opportunity, or that an individual will not be considered or hired for a position based on his or her status as unemployed.  Likewise, employers would be prohibited for failing to consider or refusing to hire someone because he or she was unemployed.  It would further be unlawful for an employer to request that an employment agency take an individual’s status as unemployed into account to disqualify him or her for consideration, screening, or referral for employment.  Unemployed individuals would also be protected from retaliation under the proposed Act.”

I am no fan of screening people out soley on the basis of their unemployed status. I think it is STUPID HR! But I also don’t think we need a law everytime stupid HR is done. Companies that are making that distinction will suffer in the long-term. Read my blog post I referenced above to see how they may suffer. This law will really not do anything to correct this. But it will make our HR lives more difficult.

To me there is a qualitative difference between someone who has been unemployed for a year, but during that time has become reeducated in an other profession and the person who has been unemployed for a year and has sat on the couch hoping they win the lottery. And employers should allow themselves the opportunity to evaluate the difference. However, under the proposed law that would be difficult. Our attorney friends say

 ” … the Act would not preclude an employer or employment agency from considering an individual’s employment history or from examining the reasons underlying an individual’s status as unemployed in assessing his or her ability to perform a job.  The Act specifically states that employers may evaluate whether an individual’s recent employment in a similar position is job-related or consistent with business necessity. As has been demonstrated in the context of employee criminal background checks, however, this may prove to be a relatively high hurdle.”

Violation of the proposed law will be expensive and include $1000 per day fine and attorney’s fees. All the attorney notifications I have read indicate that you need to look at your hiring practices NOW. And if you are using unemployed status as a screening qualification you may want to seriously rethink what you are doing. To remind you why read my previous post.  Does Unemployed = Unqualified? Refusing to Hire the Long-Term Unemployed  Don’t get in trouble for stupid HR. And if this law passes, and the jury is still out on that, you will get hit hard for stupid HR.

 

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{ 3 comments… read them below or add one }

adowling September 22, 2011 at 9:39 am

I think in this case stupid hr also equals bad hr. Why discriminate against someone that has been out of work in this economy? I would love to have a chat with someone those HR “professionals” about what their thought process was when they thought doing so was a good idea.

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Jason September 27, 2011 at 5:37 pm

This is a very stupid law. It will encourage any unemployed person who was not hired for a particular job to take that employer to court. Not wishing to be exposed to frivolous law suits or be told that they have to hire someone who is potentially less qualified than other applicants, employers might choose to not hire people at all. Another example of over reaching government regulation stifling business. Sounds like a payoff to the Trial Lawyer Unions.. The only winners will be the lawyers..

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SFJD October 4, 2011 at 5:47 pm

I can see some situations in which long-term unemployment could reasonably be seen as a disqualifying factor to someone making a hiring decision, especially in high-tech and other rapidly-evolving industries, where being out of the field for a while strongly suggests that your skills have become outdated.

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