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New Jersey Law Bans Discrimination Practice Against Unemployed Job Seekers

above-the-bar-logo-no12.jpgNew Jersey recently passed a bill that makes it illegal for employers to specify in their job listings that unemployed persons will not be considered for hiring. New Jersey’s legislative ban on blatant and open discrimination against the unemployed, whether in print or online, is the first of its kind in the US but probably not the last. If you violate the bill, you face a penalty of $1,000 for the first offense and $5,000 for subsequent offenses.

The New Jersey Statute, N.J.S.A. 34:8B-1 makes it illegal for an employer or an employer’s agent to “publish, in print or on the Internet” any job postings that provide that the job qualifications include current employment, that unemployed applicants will not be considered, or that only employed job applicants will considered for the position. The New Jersey law becomes effective June 1, 2011. The statute does not require an employer to consider hiring an unemployed job applicant.

New Jersey Representative Celeste Riley, who sponsored the bill, said she became aware of employers discriminating against the unemployed when she saw an online job ad that stated that jobless candidates should not apply. Riley’s own district has one of the highest rates of unemployment in New Jersey. Riley has stated that although you “can’t control people’s behaviors,” New Jersey can at least send a message to employers that this practice is unacceptable.

In February of this year, the EEOC held hearings to investigate and determine whether this type of discrimination against unemployed persons seeking jobs is unlawful under federal discrimination laws. Helen Norton, Associate Professor at the University of Colorado School of Law, has found that employers as well as staffing agencies have advertised jobs ranging from electric engineers to restaurant and grocery managers to mortgage underwriters, all seeking only currently employed individuals. Fatima Gross Graves, Vice President of Education and Employment of the National Women’s Law Center, has stated that discrimination against the jobless “may well act as a counterweight” against the governments’ effort in fighting unemployment. Gross Graves also testified that this type of discrimination disproportionately affects women, especially older women in non-traditional occupations.

The EEOC hearing also found that this type of discrimination can have a disproportionate effect on racial and ethnic minorities. Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, testified that African-Americans, Hispanics and Native Americans have higher unemployment rates. The rate is also higher for college educated Asian workers. Assistant Secretary of Labor for Policy, Dr. William Spriggs, testified that according to employment statistics, African Americans and Hispanics are overrepresented among the unemployed. He also testified that older applicants and persons with disabilities are also more likely to be affected if employers place job status restrictions in hiring.

Many people today are unemployed, not because of poor work performance, but because the economy suffered, restructuring, layoffs, or because they took time off to take care of kids. Many people who have been unemployed for a long period of time simply have not found another job, not because they didn’t try, but because they just can’t find another job. It is an outrage that blatantly discriminatory job ads against the unemployed are being seen across the country. This is being referred to as “you have to have a job to get a job.” About 4.4 million people, or 40% of the country’s unemployed, have been without a job for over a year. For every job opening, there are on average 5 job applicants. Unfortunately, people who have been unemployed for a long period of time have a much more difficult time finding another job.

If this vicious cycle of discriminating against the jobless continues to grow, it could potentially undermine all the recovery efforts the government has made in the past few years. This type of discrimination can also have a disparate impact on women, minorities, and persons with disabilities who have a disproportionately higher rate of unemployment. For example, where such a restrictive job ad rules out a high number of women from even applying for the job, it is a violation of of both Title VII and the Civil Rights Act of 1964. Basically, it is a way for employers to circumvent all the civil rights progress that many in this county have fought long and hard to attain.

Georgia Congressmen Hank Johnson recently introduced the Fair Employment Act of 2011 which is a bill still in committee. If passed, it would make it illegal for employers to discriminate or lower compensation because of a person’s employment status.

If you or someone you care about has suffered from any type of discrimination at the workplace, including race, gender, pregnancy, age, sexual orientation, disability, national origin, or religion, call our experienced Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss your possible case.


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EEOC Meeting of February 16, 2011

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