All employers are familiar with race, gender, age, disability and many other protected classifications under the myriad of Federal and state fair employment practices acts. It now appears that there is a growing trend to add “unemployed” to that list. While unemployment rates appear to be on the decline, 8.3 percent of the population remains unemployed, up more than 3 percent from where it was less than four years ago. When unemployment rates are high, employers invariably become inundated with candidates for the limited openings that may become open and available. So much so that some employers have taken to disqualifying potential applicants by advertising that “the unemployed” need not apply. In light of this recent development in job advertisements, Congress and several state legislative bodies have started to amend their anti-discrimination laws to add “unemployed status” as a protected class.

At present, there are two bills pending in Congress: HR 2501, the Fair Employment Opportunity Act of 2011 and S 1471, also known as the Fair Employment Opportunity Act of 2011. Both bills seek to bar private employers with fifteen or more employees from discriminating against the unemployed when posting job openings and when considering an applicant for employment, unless current employment status was a bona fide job requirement.

While similar actions are pending in several states, on March 29, 2011, New Jersey became the first state to adopt a law concerning discrimination on the basis of an applicant’s employment status. Specifically, New Jersey now prohibits employers and employment agencies, from advertising job vacancies that include “currently employed” as a job qualification, or indicate that applications will be accepted only from currently employed people or that applications from the unemployed will not be accepted.

No less than eighteen other states have taken action to join New Jersey and are currently considering similar amendments – in some cases more far reaching amendments to their fair employment practices laws. In fact, several states are currently considering amendments to classify “unemployed status” as a protected class, thereby seeking to prohibit discrimination in hiring on the basis of an applicant’s unemployed status.

While we will continue to monitor these developments and provide updates as these proposed amendments work their way through the various state legislatures, below are links to the pending state legislation:

District of Columbia
New York
South Dakota*
West Virginia

*No link available at the time of publication.