Employers May Have to Add to the List of Those Protected from Discrimination: The Unemployed
August 29, 2011
Most employers are aware that they may not discriminate against job applicants on the basis of their race, sex, national origin, religion, disability, veteran status, etc, etc. Adding to that already long list, a recent bill introduced into the U.S. House of Representatives and Senate would make it illegal for an employer to: (1) refuse to consider for employment or refuse to offer employment to an individual because of the individual’s status as unemployed; (2) publish in print, on the Internet, or in any other medium, an advertisement or announcement for any job that includes any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for a job (“must be currently employed”); and (3) direct or request that an employment agency take an individual’s status as unemployed into account in screening or referring applicants for employment.
The Fair Employment Opportunity Act was introduced as a result, in part, of the EEOC’s public meetings to examine the practice by employers of considering only employed candidates for job openings and excluding the unemployed from consideration. Should the Act be signed in to law by President Obama, employers found to have violated the Act would be liable to the affected individual for any wages, salary, benefits, or other compensation denied or lost to the individual; or, in a case in which wages, salary, benefits, or other compensation have not been denied or lost to the individual, any actual monetary losses sustained as a direct result of the violation, or a civil penalty of $1,000 per violation per day, whichever is greater. In addition, there are provisions in the proposed Act for liquidated damages, interest, and attorney fees.
There is an exception contained within the Act. An employer may discriminate against the unemployed “where a requirement related to employment status is a bona fide occupational qualification reasonably necessary to successful performance in the job, and to eliminate the burdens imposed on commerce by excluding such individuals from employment.” In other words, if the employer can show that an applicant’s employment in a similar job, at the time of application, is necessary to successful performance for the job applied for, there is no violation. Stay tuned as we continue to monitor this Bill’s progress.