California Employment Law : Employment Lawyer & Attorney : Fox Rothschild Law Firm : San Francisco, Oakland, Los Angeles, San Diego

I’ve expressed my opposition to legislation outlawing discrimination against unemployed people. One such bill, AB 1450, has passed in the Assembly and is heading to the state Senate. Absent any data showing that this is a real problem, it appeared to me that legislators are relying on anecdotes and creating new laws that will provide more opportunities for baseless lawsuits.

But a troubling statistic forces me to reevaluate my stance on this issue. Specifically, none of the major employers in California have any unemployed people currently working for them. Can this be a coincidence?

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As I wrote back in March, the EEOC -- believing that some employers refuse to hire people without jobs -- wants to make joblessness a protected category.  Now there's legislation before Congress to do just that.  Read my colleague Richard Cohen's blog post on the topic here.

Update (September 28, 2011):  President Obama's American Jobs Act includes a provision banning employers from discriminating against unemployed applicants.  Is there anything other than anecdotal evidence that such discrimination exists?

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At a February 16, 2011 public meeting, the Equal Employment Opportunity Commission examined what it described as "the emerging practice of excluding unemployed persons from applicant pools."  An EEOC spokesperson acknowledged that the agency had no official data regarding the prevalence of the (perceived) problem.  But the agency believes that such a practice has an adverse impact on some minority groups.

I have two thoughts on this.  Thought number one:  Until there's some hard evidence that this practice (which I've never heard of) exists, why doesn't the EEOC focus on discrimination against statutorily defined protected categories, instead of making up new ones?

Thought number two:  By definition, the unemployed make up 100% of the population that is out of work.  And if you provide an unemployed person a job, you remove them from that protected category.  So is it possible to remedy job discrimination against the unemployed? 

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