The Great Recession exacerbated the plight of the jobless. With more than 1 in 3 unemployed Americans out of work for six months or longer, employers were still posting job advertisements that rudely demanded “proof of current employment.” The practice has been well documented.
But in 2011, New Jersey went to bat for the long-term unemployed, scrapping the unfair practice by charging fines to companies or employment agencies who state (or imply) they don’t want anything to do with Joe-the-Unemployed. Oregon and Washington, D.C. followed soon afterward with similar lawmaking.
This coming June, the New York City Council (despite a veto by Mayor Bloomberg) will start to enforce the meatiest piece of legislation yet, enabling applicants to sue employers over claims that they were rejected due to their joblessness. As is the case with other discrimination laws, the applicant must prove it. If the Commission on Human Rights finds proof on behalf of a candidate, the guilty employer would be required to 1) hire the applicant, 2) award back and front pay, and 3) pay fines up to $250,000. (How's that for bad blood with your future boss?)
Of course, the nature of an interview necessitates a little poking around in the dusty "back rooms" of an applicant’s job history. It's inevitable that the employer will want to unearth reasons why the worker left their previous post, in order to gain insight into future work satisfaction and personality. This is still legal. However, if an employer asks for explanations concerning gaps in employment, they may be skating on thin ice… depending on the response. If the applicant responds by saying they were backpacking across Asia or caring for a sick parent during that interval, then the applicant was not technically “unemployed” (based on the definition of “able and looking”); so these nuggets could technically be factored in to a hiring decision. However, if the applicant reveals they were only “looking for work” during this interval, they can claim unemployment discrimination if they're not hired. In addition, if a large group of unemployed people is affected by an unfair hiring policy, individuals could sue based on "statistical evidence."
Naysayers are predicting the well-intentioned law will make employers even warier of the candidates who aren't currently working, fearing that a simple interview invitation will lead to a discrimination suit if they don't make the hire. Bloomberg, who vetoed the bill, fears that the unemployed who are merely disgruntled from rejection and discouraged in the current job climate could bring wrongful action against an employer.
Others point out the reality that many job-seekers are highly skilled and simply lost their jobs due to layoffs or downsizing, whereas hiring managers may only see red flags. In any case, the law directly targets this relatively new -- and very real --practice of discriminating against the unemployed. (To put things in perspective, the National Employment Law Project found 150 job ads in New York that restricted hiring to those who already have jobs).
Yet it seems staffers are never all that bothered by a candidate's history of unemployment. As we've heard time and again in the comments, "grateful" workers sometimes make better workers. With that kind of attitude, legislation like this would be unnecessary.