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Your Rights Unemployment Discrimination

Outten & Golden LLP

This page provides answers to the following questions:

  1. What is unemployment discrimination?
  2. How serious is the problem of unemployment discrimination?
  3. Are there any federal laws that protect the unemployed from discrimination?
  4. What state laws protect the unemployed from discrimination?
  5. What counts as unemployment discrimination?

1. What is unemployment discrimination?

Unemployment discrimination involves an employer intentionally excluding unemployed individuals from available job positions. The argument has been raised that there may be valid reasons an employer has for not considering the unemployed for job positions, such as potential applicants not being up-to-date on new developments in a specific field. However, currently, more than 5 million Americans have been unemployed for more than six months, so barring unemployed individuals from applying for certain job postings can disqualify millions of people who are otherwise able to perform the work required.

2. How serious is the problem of unemployment discrimination?

A stigma persists that unemployed and laid-off workers are to blame for their situation, perhaps due to poor work ethic or bad personalities. Because of this, studies show that some employers have begun discriminating against unemployed and laid-off workers when they apply for work. One study indicated that applicants who had been unemployed for just one month were seen as less hirable to HR professionals.

3. Are there any federal laws that protect the unemployed from discrimination?

Currently, there are no federal laws that protect against unemployment discrimination on the basis of a worker's unemployment status, although legislation is currently being considered in Congress to ban job advertisements that exclude the unemployed. Under current anti-discrimination laws the unemployed are not a protected class, so unemployed individuals do not have standing to use certain discrimination statutes. However, unemployment discrimination would be prohibited by the American Jobs Act proposed by President Obama.

At an EEOC hearing in Februarymonth, 2011 on the issue of unemployment discrimination, several witnesses testified that excluding the unemployed can have a marked impact on the disabled, certain ethnic groups, older individuals, and women. Consult with an attorney or anti-discrimination agency to determine if the EEOC has taken further action on the issue of unemployment discrimination.

4. What state laws protect the unemployed from discrimination?

Only the District of Columbia has enacted legislation that makes unemployed persons a protected class when it comes to discrimination. Other states are currently considering similar legislation.

Also, New Jersey and Oregon have laws preventing employers from posting job advertisements that explicitly ban unemployed individuals from applying. Similar legislation to this is also currently being considered in other states.

5. What counts as unemployment discrimination?

It is very difficult to prove that an employer has unlawfully discriminated against an unemployed individual in the hiring process, since the employer could have decided not to hire the person for a number of other reasons. Consult with an attorney or anti-discrimination agency for more information.

This page was updated on August 9, 2012

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