Imagine being out of work and desperately looking for a job. You come across a job opening that matches your experience and skill set perfectly. But there’s just one big honking problem. The ad says that the “unemployed need to apply.” What?!?
And apparently this is a much bigger problem than you might think. President Obama proposed a solution in his $447 billion jobs bill (called the American Jobs Act). The bill seeks to ban employers with at least 15 employees from denying employment because the applicant is unemployed. The bill also would ban ads that indicate the unemployed are not eligible for the jobs.
Now the lawyer in me had to dig into the bill and actually find these provisions. And sure enough, if you slog to Title III, Subtitle D, you’ll find this–“Prohibition of Discrimination in Employment on the Basis of an Individual’s Status as Unemployed.” (You can find the full text of the bill here.) In fact, this subtitle has it’s own name, “Fair Employment Opportunity Act of 2011.” Section 374 includes a long list of prohibited activities, including those noted above. And if a company were to engage in any of these prohibit activities, section 375 provides an enforcement mechanism.
So why do some employer’s discriminate against the unemployed? It seems reasonable to me for an employer to ask about an extended period of unemployment. But to just dismiss out of hand anybody who hasn’t been recently employed seems silly. But it turns out this is a prevailing practice. I’ve found stories on this in the NYTimes, the Chicago Tribune, and CNN.
But what’s equally strange to me is President Obama’s proposal. Are we really going to prohibit companies from considering an applicant’s current job status? If somebody has been unemployed for say two years, it seems appropriate to me for the employer to seek an explanation as to why and to factor into its employment decision the effects of a long bout of unemployment on the applicant’s skills and experience. And besides, exactly how are we going to enforce this rule as a practical matter? The lawyer in me sees tons of frivolous lawsuits in our future.
So what do you think? Should employers be permitted to consider an applicant’s current employment status in deciding whether to extend an offer?