Sheppard Mullin Richter & Hampton LLP (03/14/12) James Hays; Rebecca Hirschklau

There appears to be a trend to add “unemployed” to the list of protected classifications under the myriad of federal and state fair employment practices acts. When unemployment rates are high, employers invariably become inundated with candidates for the limited openings that may become open and available, to the point where some employers have taken to disqualifying potential applicants by advertising that “the unemployed” need not apply. In light of this, Congress and several state legislative bodies have started to amend their antidiscrimination laws to add “unemployed status” as a protected class.

There are two bills currently pending in the U.S. Congress: HR 2501, the Fair Employment Opportunity Act of 2011 and S 1471, also known as the Fair Employment Opportunity Act of 2011. Both bills seek to bar private employers with 15 or more employees from discriminating against the unemployed when posting job openings and when considering an applicant for employment, unless current employment status was a bona fide job requirement.

Several states, meanwhile, are currently considering amendments to classify “unemployed status” as a protected class, thereby seeking to prohibit discrimination in hiring on the basis of an applicant’s unemployed status. New Jersey in 2011 became the first state to adopt a law concerning discrimination on the basis of an applicant’s employment status. Specifically, New Jersey now prohibits employers and employment agencies from advertising job vacancies that include “currently employed” as a job qualification; or indicate that applications will be accepted only from currently employed people; or that applications from the unemployed will not be accepted.