Obama’s Proposed Jobs Bill Makes It Unlawful To Consider An Applicant’s Status As Unemployed

On September 8, 2011, President Obama presented to Congress the “American Jobs Act.” Buried in the proposed bill is a section called the “Fair Employment Opportunity Act of 2011,” making it unlawful for employers with 15 or more employees and employment agencies to discriminate against job applicants based on their status as unemployed.

If passed, the law would prohibit employers from refusing to hire individuals based on their unemployed status. It would be unlawful for an employment agency to disqualify individuals for consideration, screening or referral for employment because they are unemployed. It also would prohibit job advertisements or announcements advising unemployed individuals not to apply.

The bill proposes that the Equal Employment Opportunity Commission (“EEOC”) enforce the law. The same pre-suit procedures applicable to a claim for a violation of Title VII would apply, including the filing of an EEOC charge of discrimination by the aggrieved individual. The remedies available for a violation of the proposed law include injunctive relief, reimbursement of costs expended as a result of the unlawful employment practice, liquidated damages of up to $1,000 for each day of the violation, and reasonable attorney’s fees and costs.

Given the state of the economy with 14 million individuals presently unemployed, if this section of the Jobs Act were to pass, employers should expect a dramatic increase in the filing of EEOC charges. An unemployed individual could apply for several jobs per day, and when not hired, assume that the reason for each of the rejections was his unemployed status. An unsuccessful applicant could then file a charge of discrimination against each of the employers who rejected his application.