By: Jamie Haar
Since 2008, Americans around the country are still facing the worst job market since the Great Depression. A problem that has emerged during the recession is employers’ practice of discriminating based on an applicant’s unemployment status. The grim job prospects experienced by many throughout the country led Congressman Hank Johnson to introduce the Fair Employment Act in March of 2011, which sought to amend Title VII of the Civil Rights Act of 1964 “to prohibit discrimination on the basis of unemployment status.” No action has been taken on the Act except that it was referred to the House Committee on Education and the Workforce and the Subcommittee on Health, Employment, Labor, and Pensions.
Even if the Act were to remain stagnant, arguments have been made that discriminating based on unemployment status has a disparate impact on workers protected under other federal antidiscrimination law such as the Age Discrimination in Employment Act of 1967 as well as classes of people already protected under Title VII such as classifications based on race, sex, and national origin. According to Christine L. Owens, the Executive Director of the National Employment Law Project, the overall unemployment rate was 9% in January 2011. Of the 9%, the unemployment rate for African Americans was 15.7% compared to white workers which was 8%. Based on these percentages, discriminating based on unemployment status affects Africans Americans twice as much as it does white workers.
Additionally, the blanket exclusion of the unemployed also has a disparate impact on older workers. According to a 2010 survey, 43.9% of workers over 65 were unemployed for more than a year, the highest unemployment percentage amongst the other age groups. Because older workers are more prone to long term unemployment, they are more likely to be adversely affected by discrimination based on unemployment status.
Given that disparate claims are hard to prove under federal antidiscrimination laws, states have taken the initiative to include unemployment status as a protected class under state antidiscrimination law. In May 2011, responding to a 9.4% unemployment rate, New York Democrats introduced a bill that would make it unlawful to discriminate based on unemployment status. In January 2013, the New York City Council passed the bill which states that “[i]t shall be an unlawful discriminatory practice for an employer or licensing agency, because of an individual’s unemployment status, to refuse to hire or to employ or to bar such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” It will also be unlawful for an employer to circulate an advertisement that expressly states that a potential applicant must be employed in order to apply. The bill would still allow employers to consider employment status if there was a “substantially job-related reason” to do so. Mayor Bloomberg states that he plans on vetoing the bill because he claims the new restriction would hurt small businesses in that it would cause an increase in lawsuits. He also stated that he “can’t think of any rational employer who wouldn’t want to know what you’ve been doing for a period of time.” However, the 44 to 4 vote will likely override his veto.
Will this new legislation lower the unemployment rate in New York? Time will tell.
B. 2825, 236th Gen. Assemb., Reg. Sess. (N.Y. 2013), http://assembly.state.ny.us/leg/?default_fld=&bn=A02825&term=2013&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y
 Fair Employment Act of 2011, H.R. 1113, 112th Cong. (1st Sess. 2011).
 Written Testimony of Christine L. Owens Executive Director National Employment Law Project, U.S. Equal Opportunity Commission (Feb. 11, 2011), http://www.eeoc.gov/eeoc/meetings/2-16-11/owens.cfm
 See Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that requiring a high school education or passing of standardized general intelligence test as a condition of employment has a disparate impact on African American employees).
New York Bill Would Ban Unemployment Discrimination, Thomson Reuters (May 19, 2011) http://newsandinsight.thomsonreuters.com/New_York/News/2011/05_May/New_York_bill_would_ban_unemployment_discrimination.
 B. 2825, 236th Gen. Assemb., Reg. Sess. (N.Y. 2013).
 Arthur Delaney, Unemployment Discrimination Banned by New York Council Bill, Huffington Post (Jan. 23, 2013, 5:57 PM) http://www.huffingtonpost.com/2013/01/23/unemployment-discrimination_n_2536844.html
 Dana Rubinstein, Bloomberg Calls Quinn’s unemployment-discrimination effort ‘misguided’, Capitol (Jan. 23, 2013, 1:24 PM) http://www.capitalnewyork.com/article/politics/2013/01/7302132/bloomberg-calls-quinns-unemployment-discrimination-effort-misguided
 Delaney, supra note 15, at 1.