Don't Ask Me If I'm Unemployed, or I'll Sue You

20 December 2013 Labor & Employment Law Perspectives Blog

Several years ago, we reported about attempts by Congress to pass a law prohibiting employers and employment agencies from refusing to consider job applicants solely because they were unemployed. While no federal law has materialized, several cities and states have passed laws since then adding the unemployed as a protected class under their equal employment opportunity (EEO) laws.

Earlier in 2013, New York City passed a detailed law banning discrimination on unemployment status. The New York City law does allow employers to consider an applicant’s unemployment status when there is a “substantially job-related reason” and to ask about the circumstances surrounding an applicant’s separation from employment. It also allows employers to determine that only current employees of the employer will be considered for employment in a certain position or given priority in hiring.

More recently this month, Madison, Wisconsin passed a similar law, that simply added “unemployment” as a protected category, without listing any of the exceptions set out specifically in the New York law. In some other states and locales, including Chicago, New Jersey and Oregon, laws have passed barring employers from placing ads stating that the unemployed cannot apply, but they have not added unemployment as a protected category.

As more and more states and cities ban discrimination against the unemployed, here are some tips you can follow:

  • Review ads for new hires to make sure they do not expressly exclude the unemployed;
  • Add “unemployment status” to the list of protected categories in your EEO and anti-retaliation policies;
  • Review any specific exceptions to bans on advertising related to the unemployed or discriminating against the unemployed;
  • Train hiring supervisors and other employees involved in the hiring process not to ask applicants if they are unemployed, just as they don’t ask them if they are married or which church they go to.
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