On March 6, 2012 the D.C. City Council unanimously passed the District of Columbia Unemployed Anti-Discrimination Act of 2012. Once the opportunity for Congress to override under the Home-Rule Act lapses and it is published in the D.C. Register, the law becomes effective. Recently, New Jersey became the first state to enact such a law. New Jersey Statutes, Title 34, Chap. 8B, § § 1-2-C.34B-1 to 34:8B-2 (A.3359/S.2388, approved March 29, 2011). The Congress is considering federal legislation. See Fair Employment Opportunity Act of 2011, H.R. 2501, S. 1471, 112th Cong. (2011). The National Employment Law Project (NELP) issued a report on the subject of discrimination against the unemployed. See NELP, Hiring Discrimination Against the Unemployed, Briefing Paper (July 12, 2011) (online at: http://www.nelp.org/page/-/UI/2011/unemployed.discrimination.7.12.2011.pdf?nocdn=1) (the “NELP Report”). And, the EEOC held a public hearing on the subject. See Media Advisory, EEOC to Examine Treatment of Unemployed Job Seekers, (February 16, 2011) (online at: http://www.eeoc.gov/eeoc/meetings/2-16-11/index.cfm).
In addition to an overview of unemployment discrimination and legislative attempts to address this problem, the NELP report provided a sampling of job postings and employers explicitly requiring in their posted announcements that applicants be currently employed. The list includes such employers as Allstate Insurance (Licensed P&C Team Member), Johns Hopkins University (Research Program Supervisor), McGuire Woods, LLP (Legal Secretary), and the University of Phoenix (Professor). NELP Report at pp. 8-11 (online at http://www.nelp.org/page/-/UI/2011/unemployed.discrimination.7.12.2011.pdf? nocdn=1).
Given the demographics of the 8.3% unemployed (7.3% among Caucasians and 14.1% among African Americans), it would seem that an across-the-board prohibition on considering the unemployed may very well have a statistically significant disparate impact on African American job applicants, Hispanic job applicants, and older job applicants. See Bureau of Labor Statistics, Employment Status of the Civilian Population by Race, Sex, and Age (online at http://www.bls.gov/news.release/empsit.t02.htm); Media Advisory, EEOC to Examine Treatment of Unemployed Job Seekers, Testimony of William E. Spriggs, Assistant Secretary for Policy, U.S. Dep’t. of Labor, (February 16, 2011) (online at: http://www.eeoc.gov/eeoc/meetings/2-16-11/transcript.cfm). Thus, I would expect, if they have not already been filed, for a spate of lawsuits to be initiated against companies that have such absolute bans.
I dare not predict whether federal legislation will pass, but, as I practice in D.C., the new D.C. law banning discrimination against the unemployed, will quickly bring some troublesome issues to my desk. For example, I often say to clients an aphorism: “Whoever has a job is more likely to find a new job.” And, I add in the dialogue with clients the reality that he/she who does not have a job has less bargaining power compared to those applicants who are employed in terms of their initial compensation package. So, given the new law, I wonder how the Courts will address the claim that undoubtedly will be made that offering a lower compensation package to an unemployed applicant than one offers to an employed applicant constitutes discrimination against the unemployed.
All of this also leads me to grind my teeth about the fact that, for some two decades now, employers cannot obtain from an applicant’s former employers a meaningful job reference. Former employers will provide no meaningful information regarding either the high performers or the ne’er-do-wells. Thus, the job applicants who have demonstrated proficiency at work and who have an excellent work ethic cannot get a reference. And, the “bad guys” oftentimes slip under the radar screen because prospective employers can obtain little or no information. So, in the neutral reference world in which we live, prospective employers have to guess about the reasons a job applicant is unemployed. Was the applicant really RIF’ed, or is that just a ruse? Did the applicant really resign to seek other opportunities, or is that just a tissue-thin disguise for an involuntary termination? How will these new laws banning discrimination against the unemployed affect human resources departments who are on the front line winnowing through scores of applications, attempting to identify those who may be productive. The new D.C. law explicitly states: “Nothing in this act is intended to preclude an employer or employment agency from examining the reasons underlying an individual’s status as unemployed in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual.” See D.C. Unemployed Anti-Discrimination Act of 2012, Legis. No. B19-0486 § 5(b).
Few, and not I, would quibble with the new laws’ prohibition on advertisements, like some of those uncovered in the NELP study, that blatantly exclude the unemployed from any consideration for employment. Having said that, one cannot help but wonder whether, other than that salutary effect, the new legislation will be of any benefit to the unemployed. Time will tell.