Will the Unemployed Be the Next Protected Class in the United States?

According to the U.S. Department of Labor, the unemployment rate for workers in the United States is 9.1 percent and affects 13.9 million people.  These statistics have remained unyielding, but change could now be in the mist.

In the last several years of the recession, prospective employees seeking employment have suffered discrimination because of the fact that when applying for a position, they had no job. Ironic, isn’t it?, the applicant shows up to try and obtain work only to find out that he/she will not become employed because he/she is unemployed. Huh?

In states and cities all over the nation, like Indianapolis, Buffalo, Texas, and New Jersey, advertisements in print and via the internet are including hiring criteria analogous to “must be currently employed.” For example, in Texas an electronics company looking for an engineer would not “consider/ review anyone NOT employed regardless of reason.” In New Jersey, a similar ad ran, “No Unemployed Candidate will be considered at all. This is discrimination in its truest form.

Employers are quick to point out their valid justification, namely, that these prospective employees, if they are unemployed have outdated skills. They argue that technology is affecting every industry and this ever-evolving business market needs new skills. That broad generalization is unintelligible. And even if true, this class of unemployed must not be left without any legal protection. The Legislature cannot let 13.9 million unemployed American voters go without jobs and endure discrimination because they in fact have no job?

On November 17, 2010, fifty-four members of Congress signed a letter addressed to the United States Equal Employment Opportunity Commission (“EEOC”), the Federal Agency tasked with enforcing federal laws prohibiting discrimination and harassment, urging an investigation into the “blatant discrimination against the unemployed.”1 Thereafter on February 17, 2011, the EEOC held a public hearing on the topic. Several experts were called including Professor of Law Helen Norton who explained that these discriminatory advertisements are not a rarity. She cited examples for discriminatory advertisements in the following industries: “freight handlers, restaurant managers, sales representatives, salespeople, litigation associations, mortgage underwriters, electrical engineers, apartment maintenance technicians, and executive assistants.”

Aside from the aforementioned facts, the legislature is concerned with the disparate impact of policies requiring employment by companies looking to fill open jobs. Disparate impact occurs when a facially neutral policy has a disparate impact on a protected class of people or worker. Experts have argued that the neutral policy of requiring “employed” status for employment criteria has resulted in a disparate impact on minorities. The affected minorities are mostly older women, African Americans, Hispanics, and Native Americans. These minorities have traditionally been protected through Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and other federal, state and local laws.

In furtherance of designating unemployed individuals with protected class statue, in April 2011, New Jersey’s Legislature passed a law criminalizing employment advertisements that require employed status as part of their pre-requisites. The penalty for engaging in this criminal conduct is $1,000.00 for the first offense, and $5,000 for every subsequent violation. Civil remedies cannot be far behind.

In addition, Congressman Hank Johnson of Georgia introduced a bill to Congress named The Fair Employment Act of 2011. It proposes amending Title VII of the Civil Rights Act of 1964 to expand the protected classes to prohibit discrimination against the unemployed. If this new legislation is passed, unemployed individuals will finally have some legal recourse and may enjoy an even playing field in the battle for jobs.