The United States is, in many ways, still recovering from the economic crisis that began in 2008, with millions of people still unemployed or underemployed. Unfortunately, finding a job seems to become harder the longer a person is without a job. Many employers seem not to want to hire people who have been out of work for long periods of time. Unemployment therefore becomes a vicious cycle, from which many people cannot escape. Several states have enacted laws against job advertisements that include current employment as a requirement. New York City has gone a step further. It amended the New York City Human Rights Law (NYCHRL) in 2013 to prohibit employers from discriminating based on an applicant’s employment status.
According to the Washington Post, in April 2013 about 4.7 million people had been out of work for at least six months. Research indicated that a substantial number of employers would not consider resumes submitted by people with six months or more of unemployment, regardless of their experience or other qualifications. The White House has called on businesses to stop discriminating based on a lack of employment, and it has sought commitments from companies to adopt new hiring practices. Some state and local governments have turned to legislation to address the problem.
New Jersey was the first state to pass a law against unemployment discrimination in 2011, although its law is limited in scope. Advertisements for job vacancies may not state that current employment is required for the job, or that an employer will only consider applications from people who are currently employed. N.J. Rev. Stat. § 34:8B-1. The law only allows civil penalties for violations and expressly states that it does not authorize private causes of action by job applicants. Id. at § 34:8B-2. The law survived a court challenge claiming that it violates the First Amendment’s free speech protections. N.J. Dept. of Labor & Workforce Dev. v. Crest Ultrasonics, 82 A.2d 258 (N.J. App. 2014).
The NYCHRL includes similar restrictions on advertisements for job openings, but it also prohibits employers from refusing to hire a person or making other employment-related decisions solely based on current unemployment status. N.Y. Admin. Code § 8-107(21). The law allows employers to consider a period of unemployment if “there is a substantially job-related reason for doing so.” Id. at § 8-107(21)(a)(1)(a). They may also ask about why a person left a previous job, particularly if the person was terminated for cause. A bill pending in the New York State Senate, S3267, would amend the New York State Human Rights Law with similar provisions.
A lawsuit filed last year under the NYCHRL’s unemployment discrimination provisions demonstrates a seemingly common complaint of long-term unemployed people. The plaintiff in White v. Solomon-Page Group, No. 160814/2014, complaint (N.Y. Sup. Ct., N.Y. Co., Oct 31, 2014), was offered an interview with the defendant for a job opening, but she alleges that her interviewers told her, “I don’t think you can do the job because you have been out of work for a year,” id. at 3, and never asked about her experience or qualifications.
The employment discrimination lawyers at Phillips & Associates fight for the rights of job applicants in the New York City area who have suffered due to unlawful employment practices. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to see how we can assist you.
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