Joblessness and Litigation

Why 4.5 million lawsuits could loom over the horizon.

By Michael Beygelman
Earlier this year, we broke news that some unemployed people claimed that employers were discriminating against them because they were unemployed. The theory is that a potential employer decides not to interview or not to hire a person because he or she is unemployed. I say this is theory because there hasn’t been any legal precedent to date to the effect that this alleged practice violates a person’s civil rights.
In March we noted that the Equal Employment Opportunity Commission (EEOC) had held hearings that explored the potential of the unemployed becoming the next protected class. Ana Marie Sotuela of The Saqui Law Group reported that, “the EEOC heard testimony outlining studies that demonstrate a bias against the unemployed in filling job vacancies. Others argued before the commission that no such bias exists, and that the unemployed have a harder time finding jobs because their skills become less relevant over time.”
As of today, there still haven’t been any laws enacted that prevent companies from discriminating against unemployed applicants as a basis for making interview or hiring decisions, but this could all change very quickly as this debate is gaining traction in political circles, and cases like Selena Forte’s are paving the way. The Associated Press recently featured Forte as a person who found a temporary job at a delivery company that matched her qualifications, but she claimed that a recruiter from their staffing agency told her that she would not be considered for the job because she was unemployed for too long. “They didn’t even want to hear about my experience,” said Forte. “It didn’t make sense.”
People like Selena Forte might get assistance from President Obama’s jobs bill, one provision of which would effectively prohibit companies from refusing to offer an interview or a job to someone based on their unemployment. The included language would also apply to staffing companies and employment agencies, and would prohibit recruitment advertisements from disqualifying applicants because they are unemployed.
As expected, the president’s jobs bill will face much scrutiny in Congress, because the bill is not about potential discrimination of the unemployed but rather a plan for tax increases on the wealthy. As is common for any bill, this legislation just so happens to include other provisions like the unemployment language. Should the jobs bill fail to pass Congress, we’re likely to see Democrats line up to tell unemployed voters that the Republicans opposed ending discrimination against unemployed people at a time when unemployed people are finding it hard to land a new job.
“The effort to protect the unemployed has drawn praise from workers’ rights advocates, but business groups say it will just stir up needless litigation by frustrated job applicants. The provision would give those claiming discrimination a right to sue, and violators would face fines of up to $1,000 per day, plus attorney fees and costs,” writes the AP’s Sam Hananel.
“Threatening business owners with new lawsuits is not going to help create jobs and will probably have a chilling effect on hiring,” says Cynthia Magnuson, spokeswoman for the National Federation of Independent Business. “Business owners may be concerned about posting a new job if they could face a possible lawsuit.”
Since we last reported nearly six months ago, this issue has gained more visibility because unemployment levels in the United States have remained at more than 9 percent. It is also true that older workers, like Forte, often struggle to find new jobs after they have been displaced. This potential issue had already drawn attention from the EEOC, and now Sen. Sherrod Brown has sponsored a separate bill aimed at protecting the unemployed. The Ohio Democrat has been quoted as saying that he “understands that employers need the right to hire according to their needs and to factor in work experience, but they shouldn’t have the right to discriminate from the start and preemptively deny qualified workers a fair chance at a job they need.”
If corporate HR departments didn’t pay attention to this issue six months ago, then this should serve as a wake-up call for them to get actively engaged and educated on the latest developments. What’s at stake here in terms of corporate policies, risk, and potential exposure is nearly innumerable. Staffing agencies and recruitment process outsourcing (RPO) providers should also take notice, because some of their clients rely on them to learn what is happening in the employment regulatory landscape. If some of these ideas get enacted into law, it would potentially pave the way for up to 4.5 million unemployed to seek damages from employers who did not interview or hire them for a position that they felt they were qualified for.
Michael Beygelman is the global practice leader and president, North America RPO, at Adecco Group, the world’s largest workforce solutions provider. He can be reached at

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