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New Hampshire State Representative Timothy Copeland (R — Stratham) has sponsored a bill aiming to prohibit discrimination against unemployed workers. Representative Copeland's bill will join similar bills filed in 19 other states and the District of Columbia during the 2011 and 2012 legislative sessions. These bills have been motivated by media reports highlighting the many help wanted advertisements stating that employers will only accept applications from currently employed workers or recently unemployed workers. Thus far, only New Jersey, Oregon, and Washington D.C. have enacted laws prohibiting discrimination against the unemployed.
In 2011, New Jersey became the first state to pass a law prohibiting discrimination against the unemployed. The bill: (1) prohibits employers or their agents from knowingly and purposefully publishing, in print or on the internet, any advertisement stating that unemployed applicants will not be considered or that current employment is a prerequisite for the advertised position; (2) makes clear that employers may advertise for job qualifications permitted by law, such as the holding of a valid professional/occupational license or a minimum level of education/experience, and may advertise that a job is only available to applicants currently employed by that employer; (3) subjects employers to a $1,000.00 civil penalty for first offense; $5,000.00 for a second offense; and $10,000.00 for each subsequent violation; and (4) clarifies that its provisions shall not be construed to create, establish, or authorize a private right of action by an aggrieved person against an employer who has violated to is alleged to have violated its provisions. N.J. REV. STAT. § 34:8B.
In March 2012, Oregon became the second state to pass a law prohibiting discrimination against unemployed workers. See 2012 Or. Laws 0085. Similar to the New Jersey law, the Oregon law prohibits employers or their agents from knowingly and purposefully publishing, in print or on the internet, an advertisement for any job vacancy in Oregon that states that an unemployed applicant will not be considered or that current employment is a qualification for the advertised position. Id. It also explicitly clarifies that the law shall not be construed (1) to prohibit an employer from publishing an advertisement setting forth job qualifications, such as holding a professional license, or requiring a minimum level of education/experience, or from stating that only current employees of the employer are eligible for the vacancy, and (2) to create or authorize a private right of cause of action for any aggrieved person against an employer who has violated to is alleged to have violated the law. Id. Any employer or employment agency found to have violated the provisions by the Oregon Commissioner of the Bureau of Labor and Industries shall be assessed a civil penalty of $1,000.00 per violation. Id.; see also ORS 659A.855.
Finally, in May 2012, the District of Columbia became the most recent jurisdiction to enact legislation prohibiting discrimination against the unemployed. The D.C. legislation provides far broader protection to unemployed workers than the New Jersey or Oregon statutes. First, the D.C. legislation amends its preexisting Human Rights Act of 1977 to state that: "It shall be an unlawful discriminatory practice to do any [prohibited] act[], wholly or partially for a discriminatory reason based upon the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, status as unemployed or political affiliation of any individual." 2012 D.C. Laws 132; D.C. CODE § 2-1402.11(a). Second, the legislation makes it an unlawful discriminatory practice for an employer (1) to fail or refuse to consider for employment, or fail or refuse to hire, an individual because of that individual's status as unemployed, or (2) to publish an advertisement for a job vacancy that states or indicates that an individual's unemployed status disqualifies them or will prevent the employer from considering their application. 2012 D.C. Laws 132. It clarifies, however, that consideration of an individual's unemployed status will not constitute an unlawful discriminatory practice if "an individual's employment in a similar or related job for a period of time reasonably proximate to the hiring of such individual is a bona fide occupational qualification reasonably necessary to successful performance in the job that is being filled." Id. Under Section 2-1403.16 of the D.C. Human Rights Law, persons aggrieved by an unlawful discriminatory practice are permitted to assert a private cause of action for damages. D.C. CODE § 2-1403.16(a).
The text of Representative Copeland's bill is not yet available. According to media reports, however, the bill proposes a fine of no more than $5,000.00 for a first violation and $10,000.00 for subsequent violations. See Seacoast Online, Bill Would Ban Discrimination Against Unemployed in N.H., www.seacoastonline.com/articles/20121213-NEWS-121219881 (Dec. 13, 2012). Based on that information, the proposed legislation may be more in line with the New Jersey and Oregon statutes, which create violations subjecting employers to civil fines for failure to comply with their provisions, as opposed to the D.C. legislation, which creates a private civil cause of action for aggrieved individuals who have allegedly been subject to discrimination based on their unemployed status.
Employers advertising for workers in print or electronic media should be aware of public sensitivity regarding perceived discrimination against the unemployed. As the aging of the New Hampshire population, together with a slowdown in the net population growth, suggest that we may be heading towards a shortage of qualified workers, employers should be thoughtful before disqualifying currently unemployed or underemployed workers who may be productive employees if given training and an opportunity.
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