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July 11, 2012
Employers may face lawsuits for refusing to hire based on long-term unemployment status
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The ongoing recession has made it difficult for many job seekers to find employment following lay-offs and downsizings.  But did you know that some states have enacted legislation making it illegal to reject job applicants simply because they are unemployed?  Oregon, New Jersey, and Washington D.C. have already enacted such legislation.  Moreover, at least twelve (12) other states and the United States Congress have considered legislation that would make it illegal to discriminate against job applicants because of their unemployed status. 

Although Washington State has not passed such legislation, it may not be necessary to expose organizations to potential civil liability. Washington Law Against Discrimination (RCW 49.60 et seq) already prohibits employers from adopting policies and practices that fall more harshly on persons who belong to protected classes – e.g., racial and ethnic minorities, disabled persons, military veterans.  Employees in protected groups can establish a claim for disparate impact by showing that their employer has implemented a facially neutral employment practice that falls more harshly on their protected class.[1]  Indeed, an employee claiming disparate impact discrimination is not required to show that her employer intended to discriminate against her in adopting a particular practice.[2]  Washington Law Against Discrimination requires courts to interpret its provisions liberally in effectuating its purpose.[3]

Here’s the rub… The United States Bureau of Labor Statistics recently reported that African American and Hispanic workers are disproportionately affected by the recession.  The unemployment rate for Caucasian job seekers currently sits at 7.4%.  In contrast, the unemployment rate for African Americans is trending at 13% and the rate for Hispanics is trending at 11%.  These statistics are concerning in the context of the current recession, but they also reflect longstanding disparities with respect to unemployment and racial minorities.

This means that employers expose themselves to potential civil liability whenever they base employment decisions solely on an applicant’s long-term unemployment status – this is particularly true when the applicant falls into a protected class.  To avoid possible disparate impact discrimination claims, employers should refrain from using unemployment status as a tool to screen-out potential applicants.  Rather than using unemployment status as a screening tool, employers are probably better served by looking at the applicant’s unemployed status as an opportunity to learn about the potential employee’s recent history and whether the job seeker has undertaken efforts to gain skills and knowledge related to the position. 

Contact Eisenhower & Carlson, PLLC’s Employment Group for more information on this topic

[1] Oliver v. Pac. Nw. Bell Tel. Co., Inc., 106 Wash. 2d 675, 679, 724 P.2d 1003, 1006 (1986).

[2] Shannon, 104 Wash. at 727, 709 P.2d 799; Griggs, 401 U.S. at 432, 91 S.Ct. at 854; International Bhd. of Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15

[3] RCW 46.90.020.



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