The downturn in the economy has resulted in a high percentage of long-term unemployed people. To combat the issue, legislatures are attempting to make it illegal nationwide for employers to post job openings that bar unemployed applicants, and by making unemployment a protected classification. As these proposed laws will impact businesses and how they operate, it is crucial for businesses, human resource professionals, and labor and employment counsel to understand the changing laws and the implications on employers with operations in each affected state.
Once a better understanding of the anti-unemployment discrimination issue is gained, employers will be better prepared to comply with the existing and potential laws so as to avoid penalties. Findings will show that there are better ways to deal with the issue as opposed to making unemployed discrimination a protected classification. Research into the issue was derived from the National Conference of State Legislatures, law journals, legal updates, news articles, and statutes.
By using these resources, it was discovered that proposed anti-unemployment discrimination laws are failing, that unemployment becomes an issue during times of economic crisis, and that existing federal and state laws already protect people from discrimination with respect to employment-related decisions. Findings from research indicate that there is no one method that can help improve the unemployment rate.
Instead of making it illegal for employers to make hiring decisions while considering a person’s unemployment status, the government should work in conjunction with employers by offering incentives and training programs to help reduce the unemployment figures. Shouldn’t employers be able to consider an applicant’s unemployment status without being fearful of accusations of unemployment discrimination?
Unfortunately, employers in certain states today can be penalized for refusing to hire job applicants if the hiring decision is based on an applicant’s unemployment status or if a job vacancy advertisement includes language that bars unemployed persons from applying. Within the past two years, New Jersey, Oregon, and Washington, D. C. have enacted legislation that makes it illegal for employers to discriminate against job applicants based upon their unemployment status.
Most recently, the State of New York has made unemployment status a protected trait. New York’s law will come into effect on June 11, 2013 (Morea, 2013). The economy and difficulty obtaining gainful employment can be frustrating for a lot of people today, but despite the issue, employers should always be able to select the strongest candidate for a job opening without having to fear allegations of unemployment discrimination.
In essence, an employer should be afforded the right to select a candidate with relevant, recent employment history over a candidate that has been out of the workplace for a considerable amount of time, especially where an applicant has an inadequate explanation for gaps in employment. Despite New York’s stringent, pending statute that will authorize an individual to bring a private action for occurrences of joblessness discrimination, similar proposed laws are failing federally and state-wide (NCLS 2013). The failed legislative bills, along with the new anti-unemployment discrimination laws, are discussed at length below.
The compelling reason behind the failure of proposed anti-unemployment discrimination laws is that there is strong sentiment that such laws, if passed, may expose companies to lawsuits, which in turn will likely cause employers to become even more selective in inviting candidates for interviews so as to avoid unemployment discrimination suits (Pear, 2011). An employer should always be able to consider a candidate’s length of unemployment as part of its big picture hiring strategy. It just makes business sense.
For example, say that Company 2Y, LLP has a job opening in a demographic area where the unemployment figures are staggering. In response to its job posting, thousands of applications are received; however, only one candidate is needed to fill the position. In order to streamline the hiring process, Company 2Y, LLP is going to weed out any applications or resumes where an applicant does not possess recent, relevant experience. In this manner, Company 2Y, LLP is able to cull the staggering numbers of resumes down to those resumes of candidates that are currently employed in the same line of work.
By doing this, Company 2Y, LLP will be able to limit the amount of people it invites for an interview, and will be assured it is getting a top-notch employee that is up to par with the latest technological advances and business practices in the given field. In all states aside from Oregon, New Jersey, New York and Washington, D. C. , this hiring scenario would be a legitimate practice so long as the company does not have any protocols in place that set out to disqualify applicants based on a protected characteristic such as race, disability or those candidates that are over age 40.
As it stands, people already have laws protecting them from discriminatory practices with respect to employment, so why is there a need to make unemployment a protected characteristic, especially considering that it is a state of being and not a permanent trait such as one’s color, gender, race, national origin, age, or disability. As stated, there are already sufficient laws and administrative agencies such as the Equal Employment Opportunity Commission and local state agencies such as the Department of Fair Employment and Housing and the Department of Labor that are charged with combatting discriminatory animus in employment.