excerpted from: Jennifer Jolly-Ryan, Have a Job to Get a Job: Disparate Treatment and Disparate Impact of the “Currently Employed” Requirement , 18 Michigan Journal of Race and Law 189 (Fall, 2012) (119 Footnotes)
Americans recently faced the longest and worst recession since the Great Depression. Many Americans lost jobs and remain unemployed through no fault of their own. Many Americans believe that excluding unemployed workers from employment opportunities in the aftermath of one of the worst and longest recessions in American history is inherently unfair and bad for the economy. Americans view the denial of jobs to unemployed workers and job seekers as detrimental to the nation's future. They strongly support a ban on discriminatory practices against unemployed workers and job seekers.
Hiring practices and job postings that require unemployed workers and job seekers to be “currently employed” create a new kind of discrimination against American workers. They leave unemployed Americans behind and exclude them from job opportunities in a very competitive job market. The practice also causes a rippling effect throughout the economy. The exclusion of unemployed workers and job seekers from job opportunities prolongs the American unemployment crisis and limits the pool of talented and skilled job applicants looking for work. In the long run, that is bad for business and bad for the economy.
Moreover, hiring practices and job postings that require job seekers to be “currently employed” discriminate against a large segment of unemployed Americans. The exclusion of unemployed job seekers for job opportunities disparately impacts older job seekers, job seekers of color, and job seekers with disabilities. It also likely violates many Americans' basic civil rights.
Part I of this Article describes America's jobs and unemployment crisis. A persistent shortage of paychecks seeps into Americans' aspirations and erodes their basic “understanding about the supposed rewards of trying hard, getting educated and looking for work.” Part II discusses hiring practices that exclude the long-term unemployed. It predicts that although the unemployment rate has improved over recent months, the crisis will continue to grow larger, particularly for the long-term unemployed, as long as employers and employment agencies exclude unemployed workers and job seekers from consideration for available jobs. Finally, Part III explains how traditional employment discrimination theories can be applied to address discrimination against long-term unemployed workers and job seekers, many of whom are protected under the civil rights laws.
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Requiring a person to be “currently employed” in order to be hired condemns a large number of unemployed workers to long-term unemployment. Establishing such a requirement in a weak economy is fundamentally unfair to older people, people of color, and people with disabilities. While some unemployed workers are protected under current civil rights laws, gap-filling legislation that extends protection from discriminatory job advertisements and hiring practices to all unemployed workers is needed in a difficult job market.
In addition, throwing a jobless worker's application in the trash solely because of joblessness is counter to good business practices. The goal of employers is to hire the most qualified workers, which can best be accomplished by enlarging, rather than shrinking the applicant pool. A larger pool of qualified job applicants for employers to consider makes better business sense.
. Professor of Legal Writing, Salmon P. Chase College of Law, NorthernKentucky University. Thank you to Jesse Bowman, Amanda Perkins, Carol Furnish, and Sean Ryan.