Unemployment Discrimination: Political Fluff or New Wave of Litigation?

Written by Robert G. Brody on June 16, 2011

With record unemployment numbers, politicians have turned their attention to the growing number of “unemployed need not apply” job ads.  Last April, New Jersey made headlines when it became the first state to outlaw “unemployment discrimination” in job ads.  Legislators in Congress and New York have proposed broader protections for the unemployed.  Is this the start of a new trend or just political fluff?  With only one law actually on the books – and a fairly toothless one at that – it is too soon to tell.  Below is an update on the status of these three pieces of legislation.

New Jersey Statute

Although New Jersey’s unemployment discrimination law sounds like a new headache for employers, it actually requires very little, and does nothing to protect the unemployed.  First, it only outlaws language not conduct.  Specifically, the law prohibits the publication of statements in a job ad stating unemployed individuals will not be considered.  The law does not prohibit actual discrimination in hiring or terms of employment.  Further, the law does not give applicants the right to sue employers.  Only the Commissioner of Labor and Workforce Development can collect the penalties – $1,000 penalty for a first offense and $5,000 for subsequent offenses. 

Proposed Federal Bill

The Fair Employment Act of 2011, proposed in March by Democratic Representative Hank Johnson, would provide all the protections of Title VII of the Civil Rights Act of 1964 to the unemployed.  The proposed bill would accomplish this by adding a sixth protected class under Title VII: “unemployment status,” defined as “being unemployed, having actively looked for employment during the then most recent 4-week period, and currently being available for employment.”  The bill is currently in committee, but we would be surprised if is such a sweeping change to Title VII actually became law.

Proposed New York Bill

While a federal bill is unlikely to gain traction, a state statute actually might.  In May, a bill was proposed in the New York Senate prohibiting discrimination based on “unemployment status” and using the same definition as the federal bill.  This law would apply to employers, employment agencies, and licensing agencies in New York State.  Like the federal bill, this one is still in the early stages of the legislative process.  The New York legislature has a history of passing much more liberal employment legislation than Congress, but it remains to be seen whether they will create an unprecedented protected class. 

The bottom line is there’s nothing new for employers to do but wait and see.  We will continue to update you on these and similar bills. 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.

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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