The Unemployed, A New Protected Class?

By: Inderjit Dhami

In a nationally televised address, President Barak Obama proposed the American Jobs Act on September 8th 2011, to a joint session of Congress.[1]  The President laid out the bill as a series of non-controversial proposals to get Americans back to work. Among the proposed measures include reducing payroll taxes, expanding employment opportunities for low-income youth, as well as creating additional regulations regarding those who discriminate against hiring the long term unemployed.[2]

The White House believes that discrimination against the unemployed continues to keep many Americans out of work.[3] A recent report by the National Employment Law Project, a worker advocacy group, cited 73 businesses ask in job postings that applicants be currently employed.[4] Stating “Denying employment opportunities to the unemployed is unfair, counterproductive, and inconsistent with our nation’s values.”[5]  The President’s solution to unemployment discrimination, as part of his American Jobs Act, is the Fair Employment Opportunity Act of 2011.

The President’s proposed legislation has two primary prongs; first it would make it unlawful to refuse to hire applicants solely because they are unemployed. [6] Under the proposal, it would be an unlawful employment practice if a business with 15 or more employees refused to hire a person because of the individual’s status as unemployed.[7] Unsuccessful job applicants could sue and recover damages for violations, just as under Title VII when an employer discriminates on the basis of a person’s race, color, religion, sex or national origin.[8]

Second, the Fair Employment Opportunity Act would make it illegal to include in a job posting a provision that unemployed persons will not be considered.[9] Websites and employment agencies would be prohibited from positing job advertisements that specifically exclude applicant who have been unemployed for a long time.[10]

Even though unemployment is not currently a protected status, discriminating against potential candidates based upon there employment status may disparately impact protected racial minorities such as blacks and Hispanics who have higher unemployment rates.[11] Measures that disproportionately exclude protected class members from job opportunities without adequate justification frustrate Title VII’s objectives in at least two ways. First, employment practices that disproportionately disadvantage protected class members without any genuine relationship to adequate job performance may sometimes conceal an employer’s intent to discriminate[12]. Second, even without an employer’s discriminatory intent, employment practices that impose a disparate impact often stereotypes about the skills and capabilities that predict successful job performance[13].

The Fair Employment Opportunity Act seems to allow a members and non-members of existing protected classes to sue without having to prove disparate discrimination based upon their race, color, religion, sex, or national origin.[14]  However, the extent to which “unemployed” will be treated the same as the other classes is yet to be known. Unlike other protected groups, unemployment is not a permanent status. Furthermore, the Act itself lays out that employers can still consider an individual employment history and the reasons underlying an individual’s status as unemployed.[15]  If the Act were to pass there would be considerable litigation to determine the extent of the protection of this new unemployed class.

It seems that getting clarification about the extent of protections of this proposed unemployed class is a moot point.  With both Republicans and conservative Democrats claiming that The Fair Employment Opportunity Act will increase litigation costs on small businesses, reducing overall employment prospects, it is unlikely to be enacted into law.[16]


[1] Whitehouse, President Obama Presents American Jobs Act, YouTube (Oct.16, 2011), http://www.youtube.com/watch?v=n2l2DtomxTo.

[2] Id.

[3] Sam Hananel, Unemployed Seeks Protection Against Job Bias, Memphis Daily News (Oct. 11, 2011), http://www.memphisdailynews.com/news/2011/oct/11/unemployed-seek-protection-against-job-bias/.

[4] National Employment Law Project, Hiring Discrimination Against the Unemployed: Federal Bill Outlaws Excluding the Unemployed From Job Opportunities, As Discriminatory Ads Persist (2011), http://nelp.3cdn.net/b4ade339e970088d72_alm6blqx8.pdf

[5] Id.

[6] Office of the Press Secretary, Fact Sheet American Jobs Act, The White House (Sept. 08,2011), http://www.whitehouse.gov/the-press-office/2011/09/08/fact-sheet-american-jobs-act.

[7] Robert Pear, Obama Proposes Protecting Unemployed Against Hiring Bias, N.Y. Times (Sept. 26, 2011), http://www.nytimes.com/2011/09/27/us/politics/obama-proposes-adding-unemployed-to-protected-status.html?_r=1&scp=3&sq=employment%20law&st=cse.

[8] Id.

[9] Id.

[10] See Office of Press Secretary, supra note 6.

[11] Paul Monsees, Not Hiring the Unemployed: Is There a Disparate Impact on Minorities?, Labor and Employment L. Perspectives available at http://www.foley.com/publications/pub_detail.aspx?pubid=7963.

[12] See Griggs v. Duke Power Co., 401 U.S. 424, 426-30 (1971) (explaining that non-job-related tests disproportionately excluded African-Americans from jobs Freezing the status quo of discriminatory hiring practices.).

[13] See id. at 431-32 (“absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”).

[14] See Paul Monsees, Supra note 11.

[15] American Jobs Act, S. 1549, 112th Cong. §374 (d) (2011).

[16] Rosalind S. Helderman, Why Some Democrats Oppose Obama’s Jobs Bill, Wash. Post (Oct. 12 2001), http://www.washingtonpost.com/politics/why-some-democrats-oppose-obamas-jobs-bill/2011/10/12/gIQAILfBgL_story.html.

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