Bad Economy Creates New Form of Discrimination

Written by Robert G. Brody and Abby M. Warren on July 16, 2012

A new form of discrimination has crept into the American workplace.  In an attempt to properly vet potential new hires and to determine their work histories, employers have started what lawmakers describe as discrimination against the unemployed, especially those that have been unemployed for long periods of time.  In this economy, where individuals may remain unemployed indefinitely, states are concerned there is a stigma associated with long-term unemployment on which employers will base their hiring decisions.

Currently, several states and the District of Columbia (D.C.) have addressed this new form of discrimination through enacting legislation.  A new law in Oregon, effective March 27, 2012, prohibits employers from publishing job advertisements that include language indicating unemployed individuals need not apply or will not be considered..  The law specifically bars employers from creating any advertisements that contain language indicating unemployed applicants need not apply, listing “current employment” as a qualification, or stating that only job applicants who are currently employed will be considered.  Surprisingly, this law does not prohibit employers from considering an individual’s employment status during the hiring process.  Employers are still free to draw their own conclusions about why a job applicant has been out of work for a long period of time.  A similar New Jersey law became effective on June 1, 2011.

The D.C. law, effective May 31, 2012, goes even further than the Oregon and New Jersey laws.  The D.C. law creates a protected class for the unemployed and broadens whistleblower protections.  It prohibits employers and employment agencies from failing or refusing to consider applicants due to their unemployment and from publishing advertisements stating that unemployed individuals are disqualified or will not be considered as candidates.  Similar to the Oregon law, the D.C. law does not prohibit employers from considering the reason for the applicant’s lack of employment in making their hiring decision. 

States around the country are considering enacting similar bills including Connecticut, New York, Michigan, and Illinois, among other states.  There is also a comparable bill before Congress. 

Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More