The American Jobs Act – Prohibition on Discrimination Against the Unemployed

President Obama has sent the American Jobs Act to Congress and it includes some noteworthy provisions that affect employers. In particular, the Act prohibits discrimination in employment on the basis of an individual’s status as unemployed. This prohibition is within the subsection titled the Fair Employment Opportunity Act of 2011. The Act makes it unlawful for an employer to publish a job announcement stating that an applicant’s status as unemployed will disqualify him or her from employment or that the applicant will not be considered. Additionally, it makes it unlawful for an employer to refuse to consider for employment or refuse to hire an individual because of his or her status as unemployed, or to direct or request that an employment agency take into account an individual’s status as unemployed to disqualify the applicant for consideration, screening, or referral for employment. Similarly, an employment agency is also prohibited from screening or classifying someone in a manner that would limit their consideration solely because of the applicant’s status as unemployed.

“Employers” include entities that have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

Nothing in this Act is intended to preclude an employer or employment agency from considering an individual’s employment history, or 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. Such consideration or examination may include an assessment of whether an individual’s employment in a similar or related job for a period of time reasonably proximate to the consideration of such individual for employment is job-related or consistent with business necessity.

The EEOC would enforce violations of this Act in the same manner that Title VII is enforced, and the same procedures would be followed. An individual who prevails may be awarded (a) an order enjoining the company from engaging in the unlawful employment practice, (b) reimbursement of costs expended as a result of the unlawful employment practice, (c) an amount in liquidated damages not to exceed $1,000 for each day of the violation, and (d) reasonable attorneys’ fees (including expert fees) and costs attributable to the pursuit of the claim.

As you might recall, I wrote about the EEOC public meeting that explored whether the process of excluding unemployed job applicants from hiring pools discriminates against protected groups. The testimony suggested that such a practice may have an affect on women, African-Americans, Hispanics and Native Americans. Therefore, even if President Obama’s legislation does not pass, companies should still think twice before making any employment decision because of an individual’s status as unemployed.

About Ashley Kasarjian

Attorney at Snell and Wilmer in Phoenix, Arizona, and publisher of the blog, Employment and the Law.
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