The UNEMPLOYED – A Protected Category Coming To a Jurisdiction Near You

by DLA Piper

It is now illegal in New York City for employers to discriminate against job applicants based on their employment status. This June 2013 amendment to New York City’s Human Rights Law (“NYCHRL”) — a law already relished by plaintiffs’ attorneys for its extraordinarily broad definition of discrimination — defines “unemployment” as “not having a job, being available for work, and seeking employment.”

This is the first law defining unemployment status as a protected class along with the more familiar litany of protected classes: age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation and alienage/citizenship status. It is definitely not the last. There are over two dozen pending proposals for amendments to federal, state and local laws in order to ban discrimination against the unemployed.

Other jurisdictions have joined this seismic shift but along more narrow lines. For example, the states of New Jersey and Oregon as well as the City of Chicago have banned job advertisements stating that the unemployed need not apply. And the District of Columbia has made it unlawful for all employers and employment agencies in the District to consider the unemployed status of an applicant in employment and hiring decisions; that law also bars employers and employment agencies from indicating in an advertisement for a job vacancy that unemployed individuals are disqualified for the position.

Critically, none of those laws – except for New York City’s — afford an unemployed job applicant the right to sue in a court of law … yet. However, in New York City, lawsuits can now be brought by either individuals or the New York City Commission on Human Rights to seek are all of the remedies available in other discrimination cases: backpay/frontpay, compensatory damages for emotional distress, punitive damages, injunctive relief, and attorneys’ fees. In contrast to Title VII, the NYCHRL has no damage cap.

Given the trend line and the historical evolution of protected categories spreading across jurisdictions (i.e., sexual orientation), wise employers are taking preemptive measures. Those include the following:

  • reviewing handbooks, job applications, and other documents to delete any overt declarations of hostility toward hiring applicants who are currently unemployed;
  • examining all job advertisements and postings (both internal and external) to scrub any language indicating that current employment is an absolute requisite for the job; and
  • training interviewers to steer away from focusing on unemployment and instead focusing on the candidate’s skills, qualifications and experience.

For most employers, unemployment per se has never been a bar to employment. Rather, it is gaps in employment which have historically been a red flag in considering applicants. Is there a difference for purpose of these new laws? Yes, but that will likely be tested in the forthcoming lawsuits.

Imagine a candidate who is currently employed but has a checkered history of being out of the labor market. His rejection is plainly legal: he is not in the protected class defined by this statute. Now, imagine his twin brother with the same checkered history but who is unemployed. That brother is in the protected class; his rejection for the history is distinct from his current unemployment but so closely related that it becomes a factual question for trial.

If that job history is a key metric in your hiring decisions, then perhaps that needs to be carefully stated to avoid – here, hum several bars along with Robin Thicke* – “Blurred Lines.” This could be done in a disclaimer on the employment application but is admittedly an adventurous solution only for those enterprises that are devoted to striking candidates with imperfect commitments to the job market.

*Who’s Robin Thicke?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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