By: Jerry Lagomarsine
In some states the unemployed now have a right against discrimination. With the economy slowly rebounding the rates of unemployment are still high. Companies with few openings and many applicants have decided reduce that number by requiring candidates to be currently employed. There is also a stigma associated with being unemployed and a study has shown that the unemployed should be concerned about discrimination. 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. There have been proposed laws to protect the unemployed from discrimination. Some laws even go so far as to add unemployment a protected class alongside gender, race, sex and disability.
While some states are still considering the idea others have resisted. California attempted to pass a bill but it was vetoed. Also, President Obama pushed to protect the unemployed in his American Job Act but has met resistance. The executive director of labor law policy at the U.S. Chamber of Commerce said he sees no need for such a bill. 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. This idea that discrimination against the unemployed is rare is at odds with the studies done. CBS News followed the progress of unemployed men and women in Connecticut and found that there was a clear stigma against them. 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. 
New Jersey was the first to pass a law against unemployment discrimination. This law forbids employers from advertising that all candidates must be currently employed. A furniture manufacturer called Crest Ultrasonics has already challenged the statute after it was fined for a discriminatory advertisement. The company violated the statute by posting an ad requiring that candidates “must be currently employed”. Crest Ultrasonics claims that this statute violates the company’s right to free speech. On appeal the court upheld the statute finding that it did not violate the Constitution. The court found that the statute was narrowly tailored and that there was a government interest in protecting the unemployed. Oregon and the District of Columbia followed New Jersey’s precedent by passing similar laws.
Also following New Jerseys lead, New York has also passed legislation to protect its unemployed. After being passed Mayor Bloomberg vetoed the bill but was overridden by a 43-4 vote by the New York City Council. Similar to its New Jersey counterpart the New York law protects against employer advertising that suggests that a candidate needs current employment for consideration. This legislation not only protects from discriminatory ads but also protects against any discrimination in the hiring process. The New York law has taken its law a step further providing unemployed a right of action against employers that discriminate. This statute covers any employer with 4 or more employees including independent contractors and agents. The requirements for being considered unemployed are equally as broad. The individual must be out of work, able to work and seeking work. So far New York has taken the biggest step towards protecting the unemployed by providing that right to sue if discriminated against.
 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/.
 See id.
 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.
 Mullin, supra note 1.
 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/.
 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
 60 Minutes Overtime: Discrimination Against the Unemployed (Aug. 2012), http://www.cbsnews.com/news/discrimination-against-the-unemployed/.
 60 Minutes Overtime: Discrimination Against the Unemployed, supra note 13.
 Collins, supra note 8.
 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/
 Hirsch, supra note 4.
 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
 Hirsch, supra note 4.