By Kimberly Altschul Straker and Gena Usenheimer

For employers evaluating applicants, one crucial factor can be relevant job experience. But employers should be wary about disqualifying applicants based on the fact that they may not be currently employed. Several states and cities have adopted legislation aimed at helping unemployed workers secure employment. Around the country, local restrictions have been placed on the ability of employers to refuse to consider or hire people because they are unemployed. At least 5 states and cities have passed laws in the last few years prohibiting discrimination against unemployed job applicants, including Madison, Wisconsin, New York City, the District of Columbia as well as New Jersey and Oregon. For our earlier alerts on the New Jersey and New York laws, click HERE  and HERE

Most recently, a bill has been introduced in Congress entitled the “Fair Employment Opportunity Act of 2014” which aims to prohibit discrimination on the basis of an individual’s status or history of unemployment, except where a requirement related to employment status is a bona fide occupational qualification reasonably necessary to successful performance in the job.

The proposed Fair Employment Opportunity Act would apply to employers with 15 or more employees for 20 or more calendar weeks in the current or preceding calendar year and would also apply to employment agencies. Under this new law, it would be unlawful to 1) refuse to consider for employment or refuse to hire an individual because of their status as unemployed; 2) publish in print, on the Internet or in any other medium, an advertisement or announcement for any job that includes an individual’s status as unemployed as a disqualifying factor; and 3) limit, segregate or classify individuals in any manner because of their status as unemployed. 

The proposed act allows for a private right of action by individuals for damages and includes liquidated damages. It also provides for an administrative action by the Secretary of Labor to receive, investigate, and resolve complaints in the same manner that the Secretary receives, investigates, and resolves violations of Sections 6 and 7 of the Fair Labor Standards Act.

While never having issued formal guidance, the EEOC, too, has explored this issue at a public meeting in 2011, observing that the practice of excluding the “already-unemployed” from applicant pools can have a “disproportionate effect on certain racial and ethnic” minorities as well as on women, “older applicants” and individuals living with disabilities. 

Given recent and pending legislation in this area, employers should be extremely cautious about disqualifying applicants who may be unemployed.

For more on these or any other employment law matters, please contact the authors or your Seyfarth attorney.