09.14.2011
President Obama's American Jobs Act Would Make It Illegal for Employers to Discriminate Against Someone Who Is Unemployed

Last Thursday, President Obama addressed a joint session of Congress and announced his American Jobs Act. On Monday, President Obama formerly presented the Bill to Congress.  Among the provisions included the 155-page Bill but which the President did not announce in his speech last week is the "Fair Employment Opportunity Act of 2011". This law, if passed, would make it an unlawful discrimination practice for an employer to deny employment (i.e., decline to hire) an individual on account of the applicant's unemployment.  In short, President Obama's proposed law would make being unemployed a protected class on par with other protected classes such as race, color, religion, national original, age, and sex. Specifically, Section 374 of the Americans Jobs Act makes it unlawful for employers to:   

(1)  publish in print, on the internet, or in any other medium, an advertisement or announcement for en employee for any job that includes           

(A)  any provision stating or indicating that an individual's status as unemployed disqualifies the individual for any employment opportunity or

(B) any provision stating or indicating that an employer will not consider or hire an individual for any employment opportunity based on that individual's status as unemployed, or

(2) fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of the individual's status as unemployed; or

(3) direct or request that an employment agency take an individual's status as unemployed into account to disqualify an applicant for consideration, screening, or referral for employment as an employee.

The proposed law contains similar provisions specifically applicable to Employment Agencies.

The proposed law would provide various federal agencies the power to administer and enforce the Act. The proposed law provides that the Equal Employment Opportunity Commission shall have the same powers under the new law as it does under other non-discrimination laws. The procedures applicable to a claim by an individual for a violation of the new law are the same procedures that apply for a violation of Title VII of the Civil Rights Act of 1964.

Additionally, the American Jobs Act would allow individuals to file lawsuits against employers who they allege violated the Act. In any such lawsuit alleging violation of the advertising provision, the Bill provides that the individual, or any person acting on behalf of the individual, may obtain an injunction enjoining the unlawful employment practice, reimbursement of costs expended as a result of the unlawful employment practice, an amount equal to liquidated damages not to exceed $1,000 for each day of the violation, and reasonable attorney's fees, including expert fees, and costs attributable to the pursuit of the claim. 

In any lawsuit alleging a violation of any other provision of the law, including the denial of employment due to one's unemployment status, the Bill provides that the individual bringing suit, or any person acting on behalf of the individual, may be awarded the same remedies as are available under the Civil Rights Act of 1964, such as front pay, injunctive relief, reasonable attorney's fees and costs, compensatory damages for pain and suffering, and punitive damages, except that in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the individual, damages may be awarded in an amount not to exceed $5,000.

Representative Louie Gohmert (R-Texas) expressed concern about the Bill and the lawsuits which could result. Addressing the issue on the House floor, Rep. Gohmert stated "So if you're unemployed, and you go to apply for a job and you're not hired for that job, see a lawyer. You might be able to file a claim because you got discriminated against because you're unemployed." He said this Bill would discourage companies from interviewing unemployed individuals and would "help trial lawyers who are not having enough work. That's 14 million potential new clients that could go hire a lawyer and file a claim because they didn't get hired even though they were unemployed."

The Bill does provide that it is not intended to preclude an employer or employment agency from considering an individual's employment history, or from examining the reasons underlying an individual's status as unemployed, in assessing an individual's ability to perform a job or in otherwise making employment decisions about that individual. The Bill states that "Such consideration or examination may include an assessment of whether an individual's employment in a similar or related job for a period of time reasonably proximate to the consideration of such individual for employment is job-related or consistent with business necessity." However, in any lawsuit the burden will be on the employer to prove the non-discriminatory basis for denial of employment.

Employers and Employment Agencies should stayed tuned to the debate in Congress regarding the American Jobs Act and monitor whether the Fair Employment Opportunity Act of 2011 is included in whatever law is passed.

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