How Current Federal Law May Affect Discrimination Based on Unemployment

Andreas Klinke Johannsen [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0/)], via FlickrAlthough we keep hearing that the economy is improving, many people in New York City and around the country continue to be without work. In a cruel twist, it can be more difficult for a person to find a job the longer they remain unemployed. New York City amended its anti-discrimination law in 2013 to prohibit employers from discriminating in hiring based on a person’s employment status. Other jurisdictions have enacted laws addressing bias against unemployed people, but so far few are as far-reaching as New York City’s law. Federal law does not expressly protect the unemployed, but the Equal Employment Opportunity Commission (EEOC) has considered the issue, and it offers guidance on how federal law may assist some people who believe their lack of employment led to the loss of a job opportunity.

According to the Bureau of Labor Statistics, about 7.9 million people were unemployed in the U.S. in December 2015, a rate of five percent. This rate had not changed in three months, but it was down 0.6 percent from one year earlier. About 2.1 million people, or 26.3 percent, had been out of work for at least 27 weeks. This is less than half the number of long-term unemployed reported by the Washington Post—4.7 million—in April 2013, but it is still a considerable number of people who have been seeking a job for six months or longer. In an often subtle form of discrimination, many employers simply will not consider an applicant who has been out of work for a long time.

Federal law prohibits employment discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Discrimination based on age, disability, and other factors is unlawful in certain circumstances under other federal statutes. New York state law includes protections for these categories, as well as others like sexual orientation and marital status. N.Y. Exec. L. § 296(a). None of these statutes specifically mentions unemployment.

Several states and cities have passed laws relating to advertisements of job openings. In New Jersey, for example, employers may not list current employment as a prerequisite for a job. N.J. Rev. Stat. § 34:8B-1. The New York City Human Rights Law (NYCHRL) includes similar provisions and also goes much further. It states that an employer cannot “base an employment decision with regard to hiring, compensation or the terms, conditions or privileges of employment on an applicant’s unemployment.” N.Y.C. Admin. Code § 8-107(21)(a). A bill that would add similar provisions to New York state law has been sitting in committee for almost a year.

The EEOC held a meeting in February 2011 to discuss the issue of discrimination based on employment status. While no federal law specifically addresses employment as a factor in hiring, people at the meeting observed that it can have “a disproportionate effect on certain racial and ethnic minority community members,” and it can “seriously impact people with disabilities.” As a result, the EEOC now states that an employer may violate federal law by screening out unemployed applicants if this practice “significantly disadvantages people of a particular race, color, national origin, religion, or sex,” or if an applicant’s “unemployed status was caused by a disability.”

The employment discrimination attorneys at Phillips & Associates advocate for the rights of New York City job applicants and employees in claims for employment discrimination under local, state, and federal laws. To schedule a free and confidential consultation with a member of our team, contact us today online or at (212) 248-7431.

More Blog Posts:

New York City Leads the Nation in Taking on Unemployment Discrimination, New York Employment Attorney Blog, October 21, 2015

Pregnancy Can Still Mean Penalties at Work for Many New Yorkers, New York Employment Attorney Blog, September 14, 2012

Older Workers and Job Seekers Struggle with Age Discrimination, New York Employment Attorney Blog, October 23, 2011

Photo credit: Andreas Klinke Johannsen [CC BY-SA 2.0], via Flickr.

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