Hunton Employment & Labor Perspectives

The national unemployment rate, as reported by the Department of Labor, has stubbornly remained at about 9% or higher for more than two years. As many of these unemployed individuals search for new jobs, some have purportedly been denied available employment opportunities simply because they were unemployed. Unemployment discrimination, as it is often called, is not currently prohibited under federal law. The EEOC and Congress, however, have taken steps focused on so-called unemployment discrimination that could affect how employers conduct their hiring processes.

The EEOC has initiated an aggressive campaign to correct what it considers as widespread discriminatory practices in the hiring process. As part of this campaign, the EEOC is examining the alleged “emerging practice” of unemployment discrimination. On February 16, 2011, the EEOC held a public meeting in which advocates of the movement to prohibit unemployment discrimination testified that employers and staffing agencies are refusing to consider unemployed applicants for vacant positions at an increasing rate. According to these advocates, as well as the EEOC, unemployment discrimination has a “disparate impact” on minority, older, and disabled workers because those groups face higher-than-average unemployment rates.

Several members of Congress have supported the EEOC’s plans to prohibit employers from making hiring decisions based on unemployment status. Prior to the EEOC’s February public meeting, 54 members signed a letter to EEOC Chairperson Jacqueline Berrien encouraging the Commission to investigate the “very serious issue” of unemployment discrimination. Many of these Congress members also cosponsored H.R. 1113, a bill introduced by Rep. Henry Johnson, Jr. (D-GA) on March 16, 2011, which would amend Title VII to include “unemployment status” as a protected category, along with race, color, religion, sex, or national origin.

More recently, on July 12, 2011, Rep. Rosa L. DeLauro (D-CT) introduced another bill intended to prohibit unemployment discrimination. H.R. 2501, entitled the “Fair Employment Opportunity Act of 2011,” specifically targets employment actions commonly viewed as discriminatory against the unemployed, such as denying employment based on unemployment status, refusing to consider unemployed applicants, publishing job postings that bar applications by unemployed persons, and directing a staffing agency to do the same. Although the Act was introduced just weeks ago, it has already garnered the support of 30 cosponsors.

While it is too early to gauge just how far the EEOC and Congress will push the issue of unemployment discrimination, employers should be mindful of these recent trends.