Thought Leadership

Is Unemployment Discrimination Allowed?

It is widely accepted and understood that discrimination against prospective employees based on things like national origin, sex, age, or race, just to name a few, is not permissible.  Placing an ad that excludes applicants based on any of these factors would certainly create undesirable consequences.  However, some companies are placing want- ads that require potential applicants to be currently employed in order to be considered for employment.  In other words, companies are discriminating against prospective job applicants based on the fact that they are not working.   Can they do this?  At the moment, they can.

Obviously, excluding applicants because they are not working makes it difficult for workers who have lost their jobs to be re-employed, potentially exacerbating the unemployment problem, and undoubtedly creating additional barriers to employment for those who want to work.  With unemployment soaring, efforts are being made in Washington and around the country to prohibit the practice of requiring that applicants for open positions already be employed.  Federal legislation has been proposed that would prohibit employers from refusing to consider unemployed applicants.  The recently proposed Fair Employment Opportunity Act of 2011 (H.R. 2501) and the Fair Employment Act of 2011 (H.R. 1113) have been introduced to do just that.  The New Jersey Legislature recently enacted N.J.S.A. 34:8B-1, a new law prohibiting employers from publishing any job listing stating that current employment is a requirement for job consideration.  The purpose is to level the playing field, allowing the unemployed the same opportunities for employment as their employed competition.

The legislation is certainly intended to combat high unemployment.  However, the concern is that it might only create new litigation on the part of growing numbers of the unemployed, possibly have a chilling effect on hiring, and further exacerbating the unemployment problem.   Is there a perception that the unemployed are less desirable job candidates or is this practice merely an effort by some companies to limit the applicant pool for open positions, as benign as a requirement of 5 years experience to be considered for the job?  Time will tell and the debate will undoubtedly go on.   In the meantime, take great care in drafting advertisements for employment amid these concerns, so as to avoid a negative perception of discrimination in hiring, whether legislative efforts are successful or not.