Protecting the Unemployed

By: Jerry Lagomarsine

In some states the unemployed now have a right against discrimination.[1]  With the economy slowly rebounding the rates of unemployment are still high.[2]  Companies with few openings and many applicants have decided reduce that number by requiring candidates to be currently employed.[3]  There is also a stigma associated with being unemployed and a study has shown that the unemployed should be concerned about discrimination.[4]  This is especially true where in some states the average duration of unemployment is forty-two weeks.  This has received some backlash from congress and nearly twenty states.[5]  There have been proposed laws to protect the unemployed from discrimination.[6]  Some laws even go so far as to add unemployment a protected class alongside gender, race, sex and disability.[7]

While some states are still considering the idea others have resisted.[8]  California attempted to pass a bill but it was vetoed.[9]  Also, President Obama pushed to protect the unemployed in his American Job Act but has met resistance.[10]  The executive director of labor law policy at the U.S. Chamber of Commerce said he sees no need for such a bill.[11]  Many republicans see the bill as too broad for an issue they consider to be rare.  They fear it would lead to unnecessary lawsuits against employers.[12]  This idea that discrimination against the unemployed is rare is at odds with the studies done.[13]  CBS News followed the progress of unemployed men and women in Connecticut and found that there was a clear stigma against them.[14]  They report that many people complain that if they have been out of work for more than a year then the company will not even give you an interview. [15]

New Jersey was the first to pass a law against unemployment discrimination.[16]  This law forbids employers from advertising that all candidates must be currently employed.[17]  A furniture manufacturer called Crest Ultrasonics has already challenged the statute after it was fined for a discriminatory advertisement.[18]  The company violated the statute by posting an ad requiring that candidates “must be currently employed”.[19]  Crest Ultrasonics claims that this statute violates the company’s right to free speech.[20]  On appeal the court upheld the statute finding that it did not violate the Constitution.[21]  The court found that the statute was narrowly tailored and that there was a government interest in protecting the unemployed.[22]  Oregon and the District of Columbia followed New Jersey’s precedent by passing similar laws.[23]

Also following New Jerseys lead, New York has also passed legislation to protect its unemployed.[24]  After being passed Mayor Bloomberg vetoed the bill but was overridden by a 43-4 vote by the New York City Council.[25]  Similar to its New Jersey counterpart the New York law protects against employer advertising that suggests that a candidate needs current employment for consideration.[26]  This legislation not only protects from discriminatory ads but also protects against any discrimination in the hiring process.[27]  The New York law has taken its law a step further providing unemployed a right of action against employers that discriminate.[28]  This statute covers any employer with 4 or more employees including independent contractors and agents.[29]  The requirements for being considered unemployed are equally as broad.[30]  The individual must be out of work, able to work and seeking work.[31]  So far New York has taken the biggest step towards protecting the unemployed by providing that right to sue if discriminated against.[32]

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[1] Sheppard Mullin, Unemployed Status – The New Protected Class, Labor & Employment Law Blog (Mar. 7, 2012), http://www.laboremploymentlawblog.com/2012/03/articles/hiring-discipline-termination/unemployed-status-the-new-protected-class/.

[2] See id.

[3] Id.

[4] Mitchell Hirsch, New York City Council Passes Landmark Bill Protecting Unemployed Job-seekers From Discrimination (Last updated Mar. 13, 2013), http://unemployedworkers.org/sites/unemployedworkers/index.php/site/blog_entry/new_york_city_council_passes_landmark_bill_protecting_unemployed_job-seeker.

[5] Id.

[6] Mullin, supra note 1.

[7] Id.

[8] Christopher Collins & Shira Forman, Court Upholds New Jersey’s Ban on Unemployment Discrimination in Job Advertisements, Labor & Employment Law Blog (Feb. 6, 2014), http://www.laboremploymentlawblog.com/2014/02/articles/discrimination/court-upholds-new-jerseys-ban-on-unemployment-discrimination-in-job-advertisements/.

[9] Id.

[10] Robert Pear, Obama Proposes Protecting Unemployed Against Hiring Bias, The New York Times (Sept. 26, 2011), available at http://www.nytimes.com/2011/09/27/us/politics/obama-proposes-adding-unemployed-to-protected-status.html?_r=0

[11] Id.

[12] Id.

[13] 60 Minutes Overtime: Discrimination Against the Unemployed (Aug. 2012), http://www.cbsnews.com/news/discrimination-against-the-unemployed/.

[14] 60 Minutes Overtime: Discrimination Against the Unemployed, supra note 13.

[15] Id.

[16] Collins, supra note 8.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Eric Raphan & Rebecca Hirschklau, The Unemployed Are Now Protected Under The New York City Human Rights Law, Labor & Employment Law Blog (April 10, 2013), http://www.laboremploymentlawblog.com/2013/04/articles/hiring-discipline-termination/the-unemployed-are-now-protected-under-the-new-york-city-human-rights-law/

[25] Hirsch, supra note 4.

[26] Id.

[27] Id.

[28] Id.

[29] What New York City Employers Need to Know About the New Law Banning Discrimination Against the Unemployed, Latham & Watkins (April 25, 2013), https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CEsQFjAE&url=http%3A%2F%2Fwww.lw.com%2FthoughtLeadership%2Funemployed-as-protected-class&ei=fIEcU8vKLYmZ0QHgvoCYDA&usg=AFQjCNF2F-r0rzQzIyBho89gb8g-Rc1Ndg&sig2=eCa0oLmIGKceDDYhtMpgRg&bvm=bv.62578216,d.dmQ

[30] Id.

[31] Id.

[32] Hirsch, supra note 4.