The Unemployed Need Not Apply!

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?!?

jobless need not apply

(Source: NYtimes)

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?

Published or Updated: April 16, 2014
About Rob Berger

Rob founded the Dough Roller in 2007. A litigation attorney in the securities industry, he lives in Northern Virginia with his wife, their two teenagers, and the family mascot, a shih tzu named Sophie.


  1. Evan says:

    Unemployment should not be a protected class the likes of race, gender or sexual orientation…ridiculous!

    • DR says:

      It does seem like a silly comparison. I can appreciate what President Obama is trying to accomplish, but this is one case where government regulation needs to stand aside.

  2. I think businesses are being stupid, but they should be allowed to hire as they want. They are skipping out on some awesomely qualified people though…

  3. reinkefj says:

    Actually, they are doing us a favor plastering their stupidity on the advertisement. Like all other discrimination, (I see a lot of age prejudice — young and old), you’re not going to get a fair shot so why waste your time. Better to get this out of the way early before you waste precious attention, time, effort, resources, and enthusiasm on what can never come to closure.

    • DR says:

      That’s certainly a positive way to look at it.

  4. jim says:

    I don’t think this is as common as they’re acting. Just cause they can find a few examples doesn’t mean its common.

    I searched Craigslist locally and found 4 instances of the word ‘unemployed’. 3 of them were for companies encouraging unemployed people to apply. 1 of them was for work at the unemployment office. THeres 100’s of jobs listed here.

    I do think its extremely stupid for employers to discriminate against the unemployed. If it did become more common then I think it would be appropriate to make it illegal. You really can’t have a situation where employers won’t hire unemployed people… seriously thats just not workable.

    People can be unemployed for many reasons. If you want to bar people who were fired for cause then ok. Baring people who were laid off cause their company went under is unfair.

    • Starbuck says:

      Excluding those who were fired for cause is as ridiculous as excluding any other unemployed people. An example is someone who is often ill due to a chronic medical condition or reactions to medication. That person doesn’t deserve the chance to work or have accommodations made to a particular position so as to be the most productive (i.e. working from home, etc.)?

  5. Mickie says:

    I quit my job to follow my husband. Does that mean I should not be considered for employment? Definitely not. Any company who posts ads like that is not a place you want to work. Who knows how else they are discriminating against there current employees or will in the future when it suits there need.

  6. As someone who’s unemployed, I’ve seen this too. It’s been really frustrating. But, it’s definitely motivating me to become my own boss.

  7. Beth says:

    Business has every right to define and advertise the requisite skills required for any open position. To limit that position to only those employed and in transition, however, is cruel. The goal of securing the most desirable applicants for any job can be done without naming a class of people – who happen to be our fellow Americans – undesirable. We don’t need another protected class we just need a sense of decency and let hiring managers do the rest.

  8. George says:

    One more barrier to business owners trying to do what is best for their company. Business owners have to make all kinds of decisions, hamestringing businesses with more regulations is sure to help. I am already suspicious of legislation when the part everyone is talking about is in section III, sub section D. What is in sections 1 & 2, not to mention all the other sections? A dam in New Jersey?

    I don’t know why a business wouldn’t want to hire someone who is unemployed. If it is happening so much, there has to be a reason…..

    #1: does anybody know why a business wouldn’t want an unemployed person?
    #2 Is the reason rational?
    #3 Did President Obama ask?
    #4 Or is this issue more smoke and mirrors trying to show the public that the current administration is working hard on Jobs, and it is the evil rich guys (you know the ones, with 15+ employees) that are at fault that unemployed exist

    Besides, do you really want to work for someone who doesn’t want you there in the first place?

  9. Stan says:

    I have mixed feelings on this..
    Technology is changing so fast with newer innovations, faster automation systems, and faster productivity. . Unless you did something during your unemployment to keep up with technology, I can’t see someone unemployed for more than 2 years coming back into the workforce…

    I’m sure an employer can think of many other ways to not hire you besides being unemployed. This law is silly.

    I’ve been unemployed for 16 months. I’m now finding some odds and ends to be my own boss. I think I will be making enough to be fully off unemployment in another few weeks. In this economy there are still plenty of ways to make money if you think outside the box. Copper, and metals are high. I know of some people making over $1,000 a week just picking up scrap free from businesses. Businesses have to pay to dispose of it, if you offer to pick it up for free, they will be happy to give it to you. I know of people picking up old computers from businesses that upgrade computers FREE. They make good computers out of the junk computers and sell them for a $100 or $200 bucks. And the old circuits can be sold for scrap.

    I know of a number of people taking care of vacant/foreclosed homes. Banks are demanding people to “check up” on vacant homes for vandalism, people living in them, make sure heat is on, check for frozen pipes, damage, and other problems. I know of people mowing lawns at vacant homes for as much as $50.00 for a small lot. They do 5 or 6 a day, and do it 6 days a week. There are opportunities out there.. You need the brainpower to think of ideas, and sometimes the needs people and businesses desire in this economy are very obvious, that it would almost seem like a no brainer.

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