Quirky Question #219, Is Unemployment Status a Protected Category?

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Quirky Question:

We recently interviewed an applicant with a very spotty resume; there were repeated gaps in his employment history which were apparent from his resume. He was not hired and called HR to complain that it is illegal for us to consider his unemployment status. Is there a new law on this subject?

Dorsey’s Answer:

While federal legislative attempts to prohibit employers from refusing to hire job applicants because they are currently unemployed have failed, several cities and states have passed such laws.  They are each unique and more states and cities are expected to address this issue this year.

The EEOC recently conducted investigative hearings on whether being unemployed could be a protected class under Title VII, stating that statistics bear out the unemployed population is disproportionately filled by African Americans, Hispanics, older workers and the disabled. Because each of these categories is a protected class, the EEOC argues that by factoring in an applicant’s unemployment status, or by having a blanket policy of not considering the unemployed for openings, a company would be implementing a policy which unlawfully discriminates against these protected categories. To date, the EEOC has not issued guidelines or regulations, though it has publicized its concern that companies that engage in a practice of refusing to hire applicants who are currently unemployed would be troublesome and potentially in violation of federal law.  We expect to see many states and federal agencies addressing this issue this year.

Madison, Wisconsin added “unemployment” as a protected status to its discrimination laws, prohibiting discrimination in employment based on an individual’s current unemployment. New York City recently amended its Human Rights law to prohibit discrimination against individuals based on their unemployment status unless one of four narrow exceptions applies, and imposes liability on employers that adopt a policy or practice that results in a disproportionate adverse impact on unemployed persons, even if the policy is neutral on its face regarding employment status.   New York City’s law also allows job applicants to bring a private action alleging unemployment discrimination.  Neither law provides meaningful practical guidance.

New Jersey, Oregon, and Chicago have all passed laws prohibiting employers from posting job advertisements that include a job requirement of current employment or state that only currently employed applicants would be considered.  The District of Columbia also prohibits such advertisements and also prohibits employers from considering “unemployment” status when making hiring decisions.  Other states including California, Connecticut, Missouri, and Maryland have also considered but not yet passed legislation prohibiting unemployment discrimination. Given the trend, you would be wise to eliminate any direct questions on your application or in the interview about current unemployment status.