Unemployment Discrimination: Is “Unemployed” a Protected Class?

Can job applicants claim they were discriminated against because of a long history of unemployment?

No, but the law could be changing.

Subtitle D of the proposed Americans Jobs Act incorporates a previously introduced bill that would allow civil discrimination lawsuits to be brought by applicants claiming that he/she was not hired because of a history of unemployment. The Fair Employment Opportunity Act of 2011 would prevent employers and employment agencies from refusing to consider or offer a job to an unemployed individual; prohibit the publication in any medium of an advertisement or announcement for a job that includes language indicating the unemployed need not apply; and entitle those discriminated against to bring a civil action against the employer or employment agency for actual, compensatory and punitive damages.

While this provision of the President’s job plan is not likely to be passed, the Equal Employment Opportunity Commission held a Public Meeting on the topic in February of this year. Creative plaintiff’s counsel might try to argue that such a policy of excluding the long term unemployed from applicant pools creates a disparate impact for some protected groups (race, national origin, sex, age, and disability) under Title VII. the ADEA, or the ADA.

PRACTICE TIPS: Caution interviewers that they may question job applicants about gaps in the employment history on a resume; but should refrain from any comments suggesting that the Company or temporary placement service automatically excludes those who are currently unemployed, or who have a prolonged history of unemployment. Interviewers should also refrain from any comments indicating that current unemployed status is viewed negatively or puts the applicant at a disadvantage. Interviewers can still ask, “Why did you leave your prior job?” and “What types of jobs have you been seeking?”