Obama's Jobs Bill Bars Discrimination Against the Unemployed

In response to the continued downturn in the national economy, on September 12, 2011, President Barack Obama submitted to the United States Congress the American Jobs Act of 2011. While this bill has a number of provisions related to such measures as tax reduction and the funding for teachers, first responders and construction projects, it also includes a provision entitled the “Fair Employment Opportunity Act of 2011”. Significant for employers, this provision provides applicants for employment protection under federal law from employment-related discrimination due to their status as unemployed.

The stated purpose of the Fair Employment Opportunity Act of 2011 is to “prohibit employers and employment agencies from disqualifying an individual from employment opportunities because of that individual’s status as unemployed[.]” The Act specifically provides that employers may not “fail or refuse to hire an individual as an employee because the individual’s status as unemployed[.]” The proposed legislation defines “unemployed” as an “individual, at the time of application for employment or at the time of action alleged to violate this Act, does not have a job, is available for work and is searching for work.” Like other employment rights laws, this bill also provides specific anti-retaliation provisions which would bar employers and employment agencies from discriminating against those who may oppose any practice made unlawful under the Act or has asserted any right or filed any claim under the Act’s provisions.

The enforcement of this proposed bill would fall under the jurisdiction of the Equal Employment Opportunities Commission, the same agency charged with administering the Civil Rights Act of 1964 as well as other civil rights laws. Importantly, it should be noted that the damages that are available under the Act include an award of liquidated damages as high as $1,000.00 per day for each day an employer is found to be in violation of the Act, as well as injunctive relief and the reimbursement of attorneys’ fees and costs.

In sum, the Fair Employment Opportunity Act of 2011 contained in President Obama’s American Jobs Act of 2011 would make an employment applicant’s status as unemployed a legally protected class that could be the basis for a discrimination claim brought in the event the applicant is not selected for a position due to his status as unemployed. This proposed bill would raise the status of the unemployed to that of other protected classes such as race, disability, sex, age and national origin. Of course, this proposed bill is an additional government imposed burden to employers and would most certainly raise the risk of companies being entangled in even more costly litigation challenging their employment-related practices and decisions. We will continue to monitor and report on this matter as it develops.

This article was written by W. Scott Evans, Jackson Kelly, PLLC.