Why Discrimination Against the Unemployed Is NOT Illegal

By John A. Gallagher

How is long- term unemployment” defined?

If someone has been unemployed for more than six (6) months, they are considered “long-term unemployed.”

According to data collected via a recent study completed by The Huffington Post, 40 percent of those that have become unemployed since 2009 fit that criteria. They are often referred to as “chronically unemployed,” an even more painful moniker.

According to the study, the 40 percent figure equates to “the highest rate of long-term joblessness the country has seen since at least the 1940s, according to the Labor Department. As of March, that’s 4.6 million people.”

What is employee engagement, anyway?

What are the chances of finding work if you are chronically unemployed?

The HuffPost study found that applicants with pertinent experience that have been out of work for more than six months are less favored than a recently employed applicant with little or no experience.

What is ILLEGAL workplace discrimination?

The definition of “discrimination” is “the act of making a distinction.” We discriminate everyday when selecting our outfits, who we choose to engage with and what route we decide to take to and from work.

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Prior to the enactment of the Civil Rights Act of 1964 (“Title II”), the term “discrimination” was rarely used in the context of employment. Since that time, the term has evolved into a catch-phrase to characterize every workplace problem that is deemed incorrect or unfair, i.e. “there must be a secret, nefarious reason that I am disfavored at work having nothing to do with my personality or performance.”

Title VII, and other federal laws such as the Americans With Disabilities Act, the Age Discrimination in Employment Act, etc., have led to a clear definition of illegal workplace discrimination, to wit, distinguishing between workers based upon their sex, race, age, national origin, disability and/or religious beliefs, and making hiring and firing decisions based thereon.

Why discrimination against unemployed is NOT illegal

Discrimination against the unemployed may be rampant, but it is not illegal. In fact, referring to this obviously distasteful hiring practice as “discrimination” is misleading. Simply stated, and like it or not, one’s status as “chronically unemployed” is not protected under federal discrimination laws, and therefore does not constitute illegal discrimination.

New York City passed a law that makes hiring choices based upon employment status unlawful (I believe it becomes effective in June 2013); this is the only known state or municipal law of its kind.

In 2011, President Obama implored Congress to create a similar ban. This request fell on deaf ears. Consequently, choosing not to hire an applicant on the grounds of his/her employment status is not illegal discrimination under federal law, nor is it unlawful anywhere with the exception of New York City.

This was also published on attorney John A. Gallagher’s Employment Law 101 blog.

John A. Gallagher, Esquire, is the president of the Gallagher Law Group, P.C., a Philadelphia-area law firm concentrating its practice almost exclusively on representing individuals with workplace issues. After 15 years of representing major corporations in employment litigation, John Gallagher opened his firm in 2006, and since that time has represented only employees. Contact him at jag@johnagallagher.com.

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2 Comments on “Why Discrimination Against the Unemployed Is NOT Illegal

  1. Very interesting article, but I find it disturbing that relevant experience is penalized by employers following a policy (stated or unstated) that the “unemployed need not apply.” If this is a pervasive hiring practice, how can it not create an adverse impact, or slow down a recovery populated by millions of the chronically unemployed? Given the fact that this applicant category surely cuts across all demographic and socioeconomic groups, it seems that nearly anyone who is currently unemployed is at great risk of being part of the collateral damage of the U.S. labor force. While the HuffPost study is good news for someone with limited experience because they’re more likely to be hired in a challenging economy over a chronically unemployed person with more relevant experience, I do not understand the hiring logic that assumes individuals who are unemployed for more than six months are no longer worthy of employment.

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