Can Refusing to Hire The Unemployed be Considered Unlawful?

Earlier this year the EEOC conducted investigative hearings on whether unemployed could be a protected class under Title VII.  The stated concern is that statistics bear out that the unemployed population is disproportionately composed of African Americans, Hispanics, Older Workers, and the Disabled.  The reasoning of the EEOC is that because each of these categories is a protected class, by factoring in an applicant’s status as unemployed, or by having a blanket policy of not considering the unemployed for job openings, a company would be acting unlawfully discriminatory.

Enter now, legislation which would relieve the EEOC from its burden of somehow having to logically correlate discriminating against the unemployed —the recent jobs bill (The American Jobs Act), which, if passed, would create a new protected status of being “unemployed”.

Under this legislation it would be “an unlawful employment practice” if an employer with 15 or more employees refused to hire a person “because of the individual’s status as unemployed”. 

The implication is that unemployed applicants who are not hired and who feel they have been discriminated against because they are not currently employed have yet another path available to them for litigation. 

As this bill now winds through Congress in a piecemeal fashion, rather than as a whole, keep your eyes open for developments.  With persistent high levels of unemployment and the increasing number of highly publicized instances of employment ads specifically advising the unemployed that their candidacy will not be considered, there is reason for concern in an election-year. 

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