President Obama Moves to Make "Unemployed Discrimination" Illegal

Over the past year or so, many people have gotten up in arms over job ads that specifically state that unemployed candidates will not be considered for open positions. Now the practice has caught President Obama's attention.

Included in the jobs bill that Obama has been pushing over the past couple of weeks is the Fair Employment Opportunity Act of 2011.  This act would effectively make "unemployed discrimination" illegal, according to the Society for Human Resource Management.  Employers with 15 or more employees, as well as employment agencies, would be subject to the regulations.

If passed, the act will:

  • Make it illegal to post or publish job ads stating that unemployed individuals will not be considered.
  • Forbid employers from directing employment agencies to disqualify candidates based solely on their unemployed status.
  • Not allow employment agencies to segregate candidates in a way that would limit their access to information about jobs because of their unemployed status.
  • Provide whistle-blowing protections, making it illegal for employers to retaliate against those who assert their rights under the act or who aid in an inquiry based on someone else's complaint under the act.

The act specifically states that it does not prevent employers from considering past employment history or for digging into the reasons why an individual has been unemployed.  They basically just cannot refuse to hire simply based on the unemployed status.

Those opposed to the act feel this type of discrimination is not common enough to warrant legislation and that it will invite a barrage of frivilous lawsuits, according to The New York Times. Employment discrimination claims based on current laws tend to jump during tough economic times.  In Fiscal Year 2010, job bias charges filed with the Equal Employment Opportunity Commission jumped 20 percent from 2007.

There is a good chance that Obama's jobs bill will not pass. But that does not mean that employers should not take this seriously. This is the second federal attempt to make unemployed discrimination illegal - Hank Johnson (D-Ga.) previously introduced legislation also titled "The Fair Employment Act of 2011." New Jersey has already passed a law banning job ads requiring current employment, and other states are considering similar laws. So even if the jobs bill dies, it is very possible that unemployed individuals will be protected from discrimination at some point in the future. Accordingly, you and your clients should be alert and be prepared.

This article is for informational purposes only and should not be considered legal advice.

Debbie Fledderjohann is the President of Top Echelon Contracting, Inc.

Views: 185

Comment by Julie Bouman on October 6, 2011 at 9:29am
Interesting news, Debbie, thank you for sharing.  I run into this issue often in my recruiting, but with the point that hiring companies do not want to pay a recruiter to present them with a candidate's resume who is unemployed and could submit themselves otherwise since they are unemployed and actively looking for new employment, assuming they had the motivation to do so.  I find at times that is the work ethic of the candidate that could be in question - do those who were unfortunately subject to a layoff take their severance and enjoy a long vacation or hit the pavement immediately searching and pursuing their next phase of employment in their careers. very touchy subject for sure:--)
Comment by Theresa OKeefe on October 6, 2011 at 1:41pm

Personally I hope with all my heart that Obama's fair employment act passes. I'm in California where unemployment is over 12% and ads everywhere ask for "must have "recent" experience within the past 90 days."  A sneaky way of telling unemployed people not to apply.


How are we supposed to get the economy going again, if we can't put OUT OF WORK people back to work? These people were let go because of the economy and downsizing or businesses shutting down, not because they were "bad" employees.  It's frustrating and not right.


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