In February of this year, the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting to examine the practices by employers of considering only currently employed candidates for job vacancies and excluding currently unemployed persons from job applicant pools. A recent follow-up report by the National Employment Law Project , a national advocacy organization for employment rights of lower-wage workers, focused on what it called “the persistent practice” of excluding candidates based on their employment status. In response to this report and others like it, a bill was introduced in the House of Representatives in June that will make it illegal for employers and employment agencies to screen out unemployed job seekers. On August 2, the Senate followed suit with an as-yet unpublished bill with the same purpose. The proposed legislation has been named the “Fair Employment Opportunity Act” and prohibits consideration of an individual’s status as “unemployed” in screening for or filling positions.
The Act would make it illegal for an employer to: (1) refuse to consider for employment or refuse to offer employment to an individual because of the individual’s status as unemployed; (2) publish in print, on the Internet, or in any other medium, an advertisement or announcement for any job that includes any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for a job (“must be currently employed”) and (3) direct or request that an employment agency take an individual’s status as unemployed into account in screening or referring applicants for employment.
An employer or employment agency that is found to have violated the Act would be liable to the affected individual for any wages, salary, benefits, or other compensation denied or lost to the individual; or, in a case in which wages, salary, benefits, or other compensation have not been denied or lost to the individual, any actual monetary losses sustained as a direct result of the violation, or a civil penalty of $1,000 per violation per day, whichever is greater. In addition, there are provisions in the proposed Act for liquidated damages, interest, and attorney fees.
However, there is a somewhat vague and contradictory exception to the prohibitions set forth in the proposed Act. The wording of the House bill states that it is illegal to discriminate against an unemployed individual, “except where a requirement related to employment status is a bona fide occupational qualification reasonably necessary to successful performance in the job, and to eliminate the burdens imposed on commerce by excluding such individuals from employment.” In other words, an exception to the prohibitions of the Act is established if an employer can show that an individual’s employment in a similar job, during a time proximate to the hiring, is necessary to successful performance of the job for which the person is being hired. Without additional parameters, that exception could be applied to nearly every job, where it is almost always advantageous (“reasonably necessary to successful performance in the job”?) to have proximate experience in the field prior to starting a new job. It remains to be seen as to whether that exception would over-shadow the overall purpose of the proposed law, and whether it would have the ultimate result of creating increased and unnecessary litigation on the issue.