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American Jobs Act Proposes Banning Unemployment Discrimination

President Obama’s American Jobs Act proposes making it illegal to discriminate in employment on the basis of an individual’s unemployment status. As you may have suspected, this part of the bill has received support and criticism from both sides of the political spectrum.

Those who support the bill argue that workers who have lost their job due to no fault of their own should not be foreclosed from job opportunities on this basis alone. A leading proponent of passing a law to prohibit unemployment discrimination is the National Employment Law Project (“NELP”), who published a Brief Paper on July 12, 2011, entitled Hiring Discrimination Against the Unemployed: Federal Bill Outlaws Excluding the Unemployed From Job Opportunities, as Discriminatory Ads Persist. The NELP believes that it is unfair, counterproductive and inconsistent with our nation’s values to permit open discrimination against the unemployed.

The NELP researched how prevalent open discrimination against the unemployed has become and identified a number of reputable employers and job placement firms who are openly advertising their exclusion of the unemployed in their employment ads. For example, a position with Allstate Insurance requires that the applicant “must be currently employed” and a position with Kelly Services that requires the applicant to be “currently employed.” The NELP believes that the bill has public support, citing to a recent poll conducted by the Hart Research Associates in June, 2011, that 90 percent of the respondents believe that the refusal to consider an unemployed job applicant as unfair.

Those opposing a law prohibiting discrimination on the basis of an applicant’s unemployment status argue that it will have a chilling effect on America’s job creators by creating a new protected class of discrimination. People against this law like Rep. Louie Gohmert (R-Texas) believe that the bill will place another burden on business and will only help trial lawyers get rich. Rep. Gohmert recently stated on the House Floor that the law “will help trial lawyers who are not having enough work” by giving them access to “14 million new clients.”

I have some doubts that a law making it illegal to discriminate against the unemployed would have any significant impact on my employment practice. The reality is that discrimination is always tough to prove and trying to prove that someone did not get a job because they are unemployed I would think would be amongst the toughest to prove. The bill specifically states that the law does not prohibit an employer from considering an applicant’s employment history or examining the reasons underlying an applicant’s unemployment status in determining whether he or she has the ability to perform the job.

At the end of the day, most experts do not believe a bill prohibiting discrimination on the basis of an applicant’s unemployment status can pass in Congress. Even if it cannot pass, it is a good thing that it is sending some attention to those employers who actively and opening discriminating against the unemployed that it is a stupid and, may one day, constitute an illegal business practice. I think the laws real impact may be stopping companies from openly discriminating against the unemployed in the advertising and interview process, which many states, including New Jersey, have already passed similar bills.