Will “Jobless” Applicants Become a New Protected Class?

An employment rights debate is brewing in New York City.  Mayor Bloomburg has vetoed a local Council bill that would give protected class status to “unemployed” workers in New York City, making it illegal for employers to discriminate in their hiring practices due to job status.  Council is expectd to override the veto.

This discrimination measure seeks to prevent employers from advertising that positions are available only to those currently employed, thereby increasing the stigma associated with long-term unemployment.  The bill further creates a private cause of action permitting the recovery of actual and compensatory damages.  Under the current proposal, employers could consider an applicant’s job status only if they could advance a substantially job-related justification.

New York City is not the first to consider additional protections for unemployed workers.  In 2012, Washington DC passed a similar measure, the Unemployed  Anti-Discrimination Act of 2012.  Notably, the DC version does not include a private cause of action, opting for enforcement (and potentially fines) by their Office of Human Rights.

The DC law does contain some specific exemptions, which are worded as follows:

(a) Nothing set forth in this section shall be construed as prohibiting an employer or employment agency from publishing, in print, on the Internet, or any other medium, an advertisement for any job vacancy that contains any provision setting forth any other qualifications for a job, as permitted by law, including:

(1) The holding of a current and valid professional or occupational license;

(2) Certificate, registration, permit or other credential; or

(3) A minimum level of education, training or professional, occupational or field experience.

(b) Nothing in this Act is intended to preclude an employer or employment agency from examining the reasons underlying an individual’s status as unemployed, in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual.

(c) Nothing in this Act shall be construed as prohibiting an employer or employment agency, from publishing, in print or on the Internet, or in any other medium, an advertisement for any job vacancy that contains any provision stating that only applicants who are currently employed by such employer will be considered.