Friday, March 16, 2012

Discrimination Against the Unemployed: D.C. Follows New Jersey and Prohibits Discrimination Against the Unemployed

            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.



The D.C. statute reads as follows:
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the “Unemployed Anti-Discrimination Act of 2012”.

Sec. 2. Definitions.

For the purposes of this act, the term:
(1) “Employee” means any individual employed by an employer.
(2) “Employer” means any person who employs or seeks to employ for compensation one or more individuals for a position in the District (but not including the person’s parent, spouse, child, or domestic servant engaged in work in and about the employer’s household). The term “employer” includes any person acting in the interest of the person, directly or indirectly.
(3) “Employment agency” means any person regularly undertaking or
attempting, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer, and includes an agent of that person.
(4) “Potential employee” means any individual who has applied to an employer for a vacant position to gain employment.
(5) “Status as unemployed” means any individual who, at the time of applying for employment, or, who at the time an act alleged to violate this act occurs, does not have a job, is available for work, and is seeking employment.

Sec. 3. Discrimination based on status as unemployed unlawful.

No employer or employment agency shall:
(1) Fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of the individual’s status as unemployed; or
(2) Publish, in print, on the Internet, or in any other medium, an advertisement or announcement for any vacancy in a job for employment that includes:
(A) Any provision stating or indicating that an individual’s status as
unemployed disqualifies the individual for the job; or
(B) Any provision stating or indicating that an employment agency will not consider or hire an individual for employment based on that individual’s status as unemployed.

Sec. 4. Retaliation unlawful.

No employer or employment agency shall:
(1) Interfere with, restrain, or deny the exercise of, or the attempted exercise of, any right provided under this act; or
(2) Fail or refuse to hire, or discharge, any employee or potential employee because the employee or potential employee:
(A) Opposed any practice made unlawful by this act;
(B) Has filed any charge, or has instituted or caused to be instituted any proceeding, relating to any right provided under this act;
(C) Has given, or is about to give, any information in connection with
any inquiry or proceeding relating to any right provided under this act; or
(D) Has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this act.

Sec. 5. Exemptions.

(a) Nothing set forth in this act shall be construed as prohibiting an employer or employment agency from publishing, in print, on the Internet, or in any other medium, an advertisement for any job vacancy that contains any provision setting forth any other qualifications for a job, as permitted by law, including:
(1) The holding of a current and valid professional or occupational license;
(2) A certificate, registration, permit, or other credential; or
(3) A minimum level of education, training, or professional, occupational, or field experience.
(b) 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.
(c) Nothing in this act shall be construed as prohibiting an employer or employment agency from publishing, in print, on the Internet, or in any other medium, an advertisement for any job vacancy that contains any provision stating that only applicants who are currently
employed by the employer will be considered for employment.

Sec. 6. Oversight.

(a) The District of Columbia Office of Human Rights (“Office”) shall receive, review, and investigate complaints regarding violations of this act and shall take appropriate enforcement action regarding the complaints.
(b) The Office shall respond to a complaint arising pursuant to this act no later than one month after the complaint is filed.
(c) The Office shall assess civil penalties in all cases where the Office determines that an employer or employment agency has committed a violation of this act.

Sec. 7. Civil penalties.

(a) An employer or employment agency that the Office finds to have violated this act shall be subject to a civil penalty for a first violation of $1,000 per claimant, $ 5,000 per claimant for a second violation, and $10,000 per claimant for each subsequent violation, but not to exceed a total of $20,000 per violation. The Office shall collect the penalty from the violator and distribute the funds collected among any employee or potential employee who filed a claim regarding a violation of this act.
(b) Nothing set forth in this act shall be construed as creating, establishing, or authorizing a private cause of action by an aggrieved person against an employer or employment agency who has violated, or is alleged to have violated, the provisions of this act.

Sec. 8. Rules.

The Mayor, pursuant to Title I of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Official Code § 2–501 et seq.), shall issue rules to implement the provisions of this act. The proposed rules shall be submitted to the Council for a 30-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution within this 30-day review period, the proposed rules shall be deemed approved.

Sec. 9. Applicability.

This act shall apply upon the inclusion of its fiscal effect in an approved budget and financial plan.

Sec. 10. Fiscal impact statement.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 602(c)(3) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(3)).
Sec. 11. Effective date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of Congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of Columbia Register.

The New Jersey statute reads as follows:
C.34:8B-1 Provisions prohibited from advertisements for job vacancies.

1. Unless otherwise permitted by the provisions of Title 11A of the New Jersey Statutes or any other law, rule or regulation, no employer or employer’s agent, representative, or designee shall knowingly or purposefully publish, in print or on the Internet, an advertisement for any job vacancy in this State that contains one or more of the following:

a. Any provision stating that the qualifications for a job include current employment;
b. Any provision stating that the employer or employer’s agent, representative, or designee will not consider or review an application for employment submitted by any job applicant currently unemployed; or
c. Any provision stating that the employer or employer’s agent, representative, or designee will only consider or review applications for employment submitted by job applicants who are currently employed.

Nothing set forth in this section shall be construed as prohibiting an employer or employer’s agent, representative, or designee from publishing, in print or on the Internet, an advertisement for any job vacancy in this State that contains any provision setting forth any other qualifications for a job, as permitted by law, including, but not limited to, the holding of a current and valid professional or occupational license, certificate, registration, permit or other credential, or a minimum level of education, training or professional, occupational or field experience.

In addition, nothing set forth in this section shall be construed as prohibiting an employer or employer’s agent, representative, or designee from publishing, in print or on the Internet, an advertisement for any job vacancy that contains any provision stating that only applicants who are currently employed by such employer will be considered.

C.34:8B-2 Violations, penalties.

2. a. Any employer who violates this act shall be subject to a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).

b. Nothing set forth in this act shall be construed as creating, establishing or authorizing a private cause of action by an aggrieved person against an employer who has violated, or is alleged to have violated, the provisions of this act.

The proposed federal legislation, found in both the Fair Employment Opportunity Act of 2011, H.R. 2501, S. 1471, 112th Cong. (2011) and incorporated as Subtitle D of the American Jobs Act, S. 1549, H.R. 12, § § 371 et seq., reads as follows:
SECTION 1. SHORT TITLE.

This Act may be cited as the `Fair Employment Opportunity Act of 2011'.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings- Congress finds that denial of employment opportunities to individuals because they are or have been unemployed is discriminatory and burdens commerce by--
(1) reducing personal consumption and undermining economic stability and growth;
(2) squandering human capital essential to the Nation's economic vibrancy and growth;
(3) increasing demands for State and Federal unemployment insurance benefits, reducing trust fund assets, and leading to higher payroll taxes for employers, cuts in benefits for jobless workers, or both;
(4) imposing additional burdens on publicly funded health and welfare programs; and
(5) depressing income, property, and other tax revenues that states, localities and the Federal Government rely on to support operations and institutions essential to commerce.
(b) Purpose- The purpose of this Act is to prohibit consideration of an individual's status as unemployed in screening for or filling positions except where a requirement related to employment status is a bona fide occupational qualification reasonably necessary to successful performance in the job and to eliminate the burdens imposed on commerce by excluding such individuals from employment.

SEC. 3. DEFINITIONS.

As used in this Act—

(1) the term `employer' means any person engaged in commerce or any industry or activity affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and includes--
(A) any person who acts, directly or indirectly, in the interest of an employer with respect to employing individuals to work for the employer; and
(B) any successor in interest of an employer.
(2) the term `employment agency' means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for individuals opportunities to work for an employer and includes an agent of such a person, and includes any person who maintains an Internet website that publishes advertisements or announcements of job openings;
(3) the term `affected individual' means any person who was refused consideration for employment or was not hired by an employer because of the person's current employment status, or any person who was not considered, screened, or referred for employment opportunities by an employment agency because of the person's current employment status;
(4) the term `status as unemployed' means an individual's present or past unemployment regardless of the length of time such individual was unemployed; and
(5) the term `Secretary' means the Secretary of Labor.

SEC. 4. PROHIBITED ACTS.

(a) Employers- It shall be an unlawful practice for an employer to--
(1) refuse to consider for employment or refuse to offer employment to an individual because of the individual's status as unemployed;
(2) publish in print, on the Internet, or in any other medium, an advertisement or announcement for any job that includes--
(A) any provision stating or indicating that an individual's status as unemployed disqualifies the individual for a job; and
(B) any provision stating or indicating that an employer will not consider an applicant for employment based on that individual's status as unemployed; and
(3) direct or request that an employment agency take an individual's status as unemployed into account in screening or referring applicants for employment.
(b) Employment Agencies- It shall be an unlawful practice for an employment agency to--
(1) refuse to consider or refer an individual for employment based on the individual's status as unemployed;
(2) limit, segregate, or classify individuals in any manner that may limit their access to information about jobs or referral for consideration of jobs because of their status as unemployed; or
(3) publish, in print or on the Internet or in any other medium, an advertisement or announcement for any job vacancy that includes--
(A) any provision stating or indicating that an individual's status as unemployed disqualifies the individual for a job; and
(B) any provision stating or indicating that an employer will not consider individuals for employment based on that individual's status as unemployed.
(c) Interference With Rights, Proceedings or Inquiries- It shall be unlawful for any employer or employment agency to--
(1) interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this Act; or
(2) refuse to hire, to discharge, or in any other manner to discriminate against any individual because such individual--
(A) opposed any practice made unlawful by this Act;
(B) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this Act;
(C) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this Act; or
(D) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this Act.
(d) Bona Fide Occupational Qualification- Notwithstanding any other provision of this Act, consideration by an employer or employment agency of an individual's status as unemployed shall not be an unlawful employment practice where an individual's employment in a similar or related job for a period of time reasonably proximate to the hiring of such individual is a bona fide occupational qualification reasonably necessary to successful performance of the job that is being filled.

SEC. 5. ENFORCEMENT.

(a) Civil Action by Individual-

(1) LIABILITY FOR EMPLOYERS AND EMPLOYMENT AGENCIES- Any employer or employment agency that violates section 4(a) and (b) shall be liable to any affected individual--
(A) for actual damages equal to--
(i) the amount of--
(I) any wages, salary, employment benefits, or other compensation denied or lost to such individual by reason of the violation; or
(II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the individual, any actual monetary losses sustained by the individual as a direct result of the violation or a civil penalty of $1,000 per violation per day, whichever is greater;
(ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and
(iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that if an employer or employment agency that has violated section 4 proves to the satisfaction of the court that the act or omission that violated section 4 was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 4, such court may, in its discretion, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and
(B) for such equitable relief as may be appropriate, including employment and compensatory and punitive damages.
(2) RIGHT OF ACTION- An action to recover the damages or equitable relief prescribed in paragraph (1) of this subsection may be maintained against any employer or employment agency in any Federal or State court of competent jurisdiction by any one or more persons for and in behalf of--
(A) the affected individual; or
(B) the affected individual and other individuals similarly situated.
(3) FEES AND COSTS- The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.
(4) LIMITATIONS- The right provided by paragraph (2) of this subsection to bring an action by or on behalf of any affected individual shall terminate--
(A) on the filing of a complaint by the Secretary in an action under subsection (d) in which restraint is sought of any violation of section 4; or
(B) on the filing of a complaint by the Secretary in an action under subsection (b) in which a recovery is sought of the damages described in paragraph (1)(A) owing to an affected individual by an employer or employment agency liable under paragraph (1), unless the action described in subparagraph (A) or (B) is dismissed without prejudice on motion of the Secretary.

(b) Action by the Secretary-

(1) ADMINISTRATIVE ACTION- The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 4 in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207).
(2) CIVIL ACTION- The Secretary may bring an action in any court of competent jurisdiction--
(A) to enjoin violations of this title and seek other relief going forward necessary to prevent future violations;
(B) to recover--
(i) the damages described in subsection (a)(1)(A);
(ii) in the case of a violation of section 4(c), a civil penalty of not less than $250 per violation; or
(iii) such other equitable relief the Court deems appropriate.
(3) SUMS RECOVERED- Any sums recovered by the Secretary pursuant to paragraph (2)(A) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each affected individual. Any such sums recovered pursuant to paragraph (2)(A) that are not paid to an affected individual because of inability to do so within a period of 3 years and any sums recovered pursuant to paragraph (2)(B) shall be deposited into the Treasury of the United States as miscellaneous receipts.

(c) Limitation-

(1) IN GENERAL- Except as provided in paragraph (2), an action under subsection (a) may be brought not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought, provided that the limitations for filing an action shall be tolled during the period that the Secretary is considering a complaint against any defendant named in a complaint filed with the Secretary under subsection (b)(1) above.
(2) WILLFUL VIOLATION- In the case of such action brought for a willful violation of section 4, such action may be brought within 3 years of the date of the last event constituting the alleged violation for which such action is brought, provided that the limitations for filing an action by an individual shall be tolled during the period that the Secretary is considering a complaint pursuant to subsection (b)(1).
(3) COMMENCEMENT- In determining when an action is commenced by the Secretary under this section for the purposes of this subsection, it shall be considered to be commenced on the date when the Secretary files a complaint in a court of competent jurisdiction.

(d) Action for Injunction by Secretary- The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary—

(1) to restrain violations of section 4; and
(2) to award such other equitable relief as may be appropriate, including employment and monetary damages.

(e) Solicitor of Labor- The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under this section.

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