In 2011, a significant part of President Obama’s proposed job stimulus plan involved federal legislation that would have provided broad protection from discrimination for unemployed job seekers. When the law stalled in Congress, legislators in more than 15 states proposed bills to provide various levels of limited protection for unemployed job seekers.
While most of these bills also failed to gain traction, two states --New Jersey and Oregon -- and the District of Columbia succeeded in passing limited legislation that bars employers from publishing ads that solicit applications only from employed candidates. These laws provide only administrative remedies and compliance is rather simple: Don’t post an ad that excludes unemployed applicants.
Recently, however, New York City enacted a far more ambitious law designed to protect unemployed job-seekers from discrimination by employers. The amendment to the New York City Human Rights Law (NYCHRL) went into effect June 11, 2013, and is the first law in the Unites States that defines a job applicant’s unemployed status as a protected class along with age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation and alienage/citizenship status. This law is broader in scope than the other laws (and bills currently being considered in some states) by providing plaintiffs with the right to pursue private civil claims and by treating unemployed applicants in the same way members of other protected classes are treated under nondiscrimination laws.
Interview Questions May Pose Problems
Opponents of the law argue that it overreaches by improperly penalizing employers concerned about legitimate issues directly related to job performance. A number of traditional job application or interview questions may pose serious problems if asked of unemployed job applicants under the new law.
Problematic questions include: 1) directly inquiring into an applicant’s current employment status; 2) issues related to employment gaps on a resume; 3) asking an unemployed applicant to discuss the circumstances surrounding the leaving of her previous job; and 4) discussing an applicant’s lack of recent experience.
The first adjustment employers must immediately make in order to assure compliance with the New York City law is to remove any questions on job applications and from interviews that directly inquire into a candidate’s current employment status. Similarly, where there is the possibility that an applicant might currently be unemployed, interview questions should be carefully crafted to avoid even indirect inquiries into such topics as what the applicant is “currently working on.” In other words, questions that could lead to a revelation that an applicant is currently unemployed could pose a problem for an employer and should be avoided. An employer may find it helpful to uncover during an interview that a candidate is unemployed, but acquiring such knowledge could subject the employer to litigation should the applicant be turned away after an interview where his employment status was revealed.
Cautiously Examine Resume Gaps
Resume gaps pose another dilemma for many hiring employers who commonly scrutinize unexplained periods of unemployment in an attempt to weed out either “difficult” personalities or applicants who, for whatever reason, simply do not seem to stay at any one job for very long. Hiring managers need to tread carefully regarding a current employment gap, and should not ask questions that could be interpreted as an attempt to decipher whether an applicant is unemployed. This does not mean that an employer cannot ask an applicant why he has hopped from job to job over the years. An even more complicated issue arises where an applicant with a current employment gap (who is therefore unemployed) also has a string of previous employment gaps. Separating one employment gap from another could prove difficult, if not impossible, for even the most seasoned interviewer. After all, it could be impossible to determine where a question about a previous employment gap could also explain a candidate’s current unemployment situation, leading him to confirm that he is currently unemployed and, once again, opening up an employer to possible liability.
Similarly, employers should proceed with caution when asking an applicant about the reason for leaving the previous job, especially where there is some indication that the candidate remains unemployed since the loss of that job. While an inquiry into the circumstances and performance at a previous job may normally be entirely legitimate, employers must prevent any discussion from delving into whether the applicant is currently employed or not.
No Exceptions for ‘Cutting-Edge’ Industries
Under the NYCHRL, while an employer may, of course, hire a currently employed candidate who has more recent and overall experience than an unemployed one, the express language of the statute would create problems for an employer choosing to hire a currently employed applicant because he or she has more recent experience over an unemployed applicant with more overall experience (but none recently or currently). There are no exceptions carved out in the statute for cutting-edge industries such as technology or medicine, which can change extremely rapidly and where recent and continuous experience can be critical.
For industries and positions where recent experience (or current practice) is crucial to the job, employers would be wise to lay out the rationale and basis for this requirement in the job description. A failure to clearly identify current experience or practice as a legitimate job qualification could expose hiring managers and employers to litigation from an applicant who is experienced but may not be fully up to speed in a dynamic and rapidly changing industry.
Imagine two surgeons with 10 years of experience and equal credentials. A hiring hospital (and most surgical patients) would likely prefer the surgeon who has been operating for the past 10 years rather than one who has not operated over the past five. To call the first surgeon more qualified could easily lead to a lawsuit by the second surgeon who may have all of the same credentials and the same (or more overall) years of experience. In an industry where things change rapidly, it seems counterintuitive to penalize the applicant who is continuously practicing his or her trade. These industries must make clear how and why contemporaneous experience is itself an important qualification for the job.
Law Fails to Provide Sufficient Guidance
Although well-intentioned, New York City’s unemployment discrimination law fails to provide enough guidance to employers and is so broadly worded and far-reaching that it may lead to even more inefficiencies in the workplace from employers who may feel unable collect legitimate and relevant information about unemployed applicants regarding employment gaps or the circumstances regarding terminations from previous jobs. It also may prevent an employer --even in rapidly changing industries-- from hiring an applicant with more recent experience where he or she is competing with an unemployed applicant with less recent, but more overall, experience.
It may be difficult for employers to distinguish legitimate hiring practices from ones that could result in unfair discrimination against an unemployed applicant. Until sufficient case law or statutory amendments clarify the boundaries of protection for unemployed job applicants, New York City employers will face a great deal of uncertainty surrounding the hiring process of employed vs. unemployed job applicants.
Jeffrey Lax is an associate professor and chair of the department of business at Kingsborough Community College (CUNY) in Brooklyn, N.Y. He may be reached at Jeffrey.Lax@kingsborough.edu.