Protecting the Unemployed from Discrimination

As unemployment continues to hover around 9 percent, the EEOC has adopted the enforcement position that refusing to consider the unemployed in hiring decisions has a disparate impact on racial minorities, older, and disabled workers. In March, H.R. 1113, the Fair Employment Act of 2011, was introduced to amend Title VII by adding unemployed status as a protected class. EEOC Chairwoman Jacqueline Berrien received a letter signed by 54 members of the House and Senate urging her to investigate what they called the “very serious issue” of unemployment discrimination.

Another bill was introduced on July 12, 2011, H.R. 2501, the Fair Employment Opportunity Act of 2011, which would prohibit discrimination in employment on the basis of an individual’s status or history of unemployment. H.R. 2501 specifically targets employment actions by the employer such as refusing to consider or offer employment to an individual based on present or past unemployment, regardless of the length of time the individual was unemployed. The employer also may not direct or request that an employment agency account for such status when screening or referring applicants.
There is currently no law protecting workers from being discriminated against for being unemployed. In light of the current focus on the 14 million unemployed workers (August 2011 statistics), employers may want to evaluate their hiring practices in the near term to avoid the need to make changes in the event these bills are adopted.