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Discrimination against the unemployed: New protected category?

On September 8, 2011, President Obama addressed a joint session of Congress, during which he unveiled a comprehensive jobs plan aimed at spurring job creation and jump-starting a stalled economy.  The President’s proposal includes a provision banning companies from refusing to hire unemployed workers.

Similar provisions are included in bills pending before both the House and Senate.  The House and Senate versions - - both of which are titled the Fair Employment Opportunity Act of 2011 - - make it an unlawful practice for an employer or an employment agency to refuse to consider unemployed workers for available positions or to include language in job postings indicating that the unemployed should not apply.  Both bills also contain anti-retaliation provisions, as well as an exemption when an individual’s employment in a similar job for a period of time reasonably proximate to the hiring of such individual is reasonably necessary to successful performance of the job that is being filled.

As we previously reported, earlier this year the EEOC held a public hearing to examine discrimination against the unemployed. According to the EEOC, the practice of considering only those currently employed for job vacancies, which many employers use as an indicator of good performance, may have a disparate impact against older women, people of color, and individuals with disabilities.

We think it safe to say that “employment status” will soon join race, color, religion, national origin, age, disability, sex, veteran status, genetic status, and pregnancy as a federally protected category, whether through legislation or regulatory enforcement.

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Martha Zackin