By: Chad A. Staul, Esq.
Earlier this year we wrote that the EEOC conducted investigative hearings on whether being unemployed could be a protected class under Title VII. The EEOC's stated concern, driven in no small part by unions and plaintiff attorneys, is that statistics bear out the unemployed population is disproportionately filled by African Americans, Hispanics, older workers and the disabled. Because each of these four (4) categories is a protected class, the reasoning is that by factoring in an applicant's status as unemployed, or by having a blanket policy of not considering the unemployed for openings, a company would be acting unlawfully discriminatory. To date, the EEOC has neither issued guidelines nor regulations, though it has voiced its concern that companies that engage in a practice of refusing to hire applicants who are currently unemployed would be troublesome and potentially in violation of federal law.
Enter legislation which hopes to relieve the EEOC from its burden of somehow having to logically correlate discriminating against the unemployed with discrimination against minorities, women, the aged or the disabled - more precisely, President Obama's 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." That means unemployed applicants who are not hired and who feel they have been discriminated against because they are not currently employed have another path available to them for litigation.
Contemplating the application of this law is difficult and likely to give employers unnecessary headaches. The scope of the Act covers people who are currently unemployed, described as being someone who "does not have a job, is available for work and is searching for work." The proposed law does expressly allow employers to take an applicant's work history and ability to perform the job into consideration. However, it is difficult to know where the line might be drawn and whether a company can distinguish two candidates by their recent related work histories when one of them is unemployed. No doubt the EEOC would fill in the blanks with appropriate regulations to guide our understanding of what employers can actually consider when making its hiring decisions.
For now, the certainty of the American Jobs Act is anything but. Proponents of this aspect of the bill will no doubt face opposition to it should the President seek to piecemeal the bill through Congress, rather than as a whole. While there is Republican and U.S. Chamber of Commerce opposition already expressed, the fate of creating a protected status for the unemployed is uncertain.
For any questions about this aspect of the American Jobs Act or any other matter regarding the employment of individuals, please contact Wessels Sherman's Minneapolis office.
