Can Employers Refuse to Hire Someone Because They Are Unemployed?

In this challenging economy, unemployed individuals are looking for any way to find suitable employment. However, in a recent article posted on AOL Jobs, employers across the country explained that they tend to stray away from hiring the unemployed citing reasons such as not knowing why an unemployed worker lost his or her job.  Even though employers may have a preference to avoid hiring the unemployed, the question arises, is it legal to discriminate against someone because they are unemployed?

There is no federal law prohibiting hiring decisions based on unemployed status. That being said, several states have recently taken it upon themselves to implement laws prohibiting this type of hiring discrimination, notably, the District of Columbia. In 2012, the District of Columbia passed a law which prohibits DC employers from failing or refusing to consider for employment, or failing or refusing to hire, an individual as an employee because of his or her unemployed status. DC employers should pay careful attention to this law as it essentially adds unemployed status as a protected category of discrimination. Presently, Virginia and Maryland do not have unemployed status as a protected category.

Though the federal discrimination laws have never applied to unemployed status, there is a movement through a new federal law that has been proposed to prohibit discrimination based on unemployment status nationwide. The proposed American Jobs Act would in essence provide the equally broad coverage of Title VII of the Civil Rights Act of 1964 to the unemployed. Essentially, if enacted, the American Jobs Act would prohibit unemployment discrimination in all facets of employment, notably hiring, to employers with 15 or more employees.

Congress has not yet approved this law; however, employers nationwide should pay careful attention to the proposed Act as it could significantly alter the hiring process.  Even if not passed, employers should be aware of the growing trend from state legislatures to pass state specific laws prohibiting this type of discrimination. It is glowingly apparent that the hiring process has received much greater legislative attention, likely due to the increased unemployment and fewer hiring opportunities. Employers should regularly consult with their attorney to ensure whether or not their state prohibits this type of discrimination and update their employee handbook and hiring practices to be compliant with state and federal law.

The author, Nick Johnson, is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP.  Nick can be reached at NJohnson@BerenzweigLaw.com.

Are Child Care Duties Protected Under Federal Workplace Laws?

A recent case from the Alexandria, Virginia Federal Court addressed the issue of whether an employee’s child care responsibilities were protected under federal discrimination laws.  A male pharmaceutical sales rep was supposed to start work each day at 8:00 a.m.  Under an arrangement he had with his working wife, however, he needed to drop his child off at school at 8:30 a.m. four days a week, and therefore he could not start work on those days until roughly 9:00 a.m.  His supervisor told him that this later start time was not acceptable, and asked why his wife could not drop their child off at school instead.  The male rep was not the only employee who had kids, but he was the only male rep whose wife also worked outside the home.

The rep complained to Human Resources that he was being singled out because of his family responsibilities, and that the supervisor’s comments were based on a stereotype that “it’s the wife’s job” to do things such as taking the kids to school.  He eventually sued the company for gender discrimination.

A federal judge in Alexandria recently dismissed the employee’s case prior to trial, after concluding that the company’s 8:00 a.m. start time policy was applied uniformly to all employees, regardless of gender and regardless of whether an employee had children or not.  The court pointed out that federal discrimination laws do not protect against discrimination  that is based on caregiver responsibilities.  The court added that it would be a violation of federal discrimination laws if the company had treated mothers differently than fathers in terms of scheduling.

Had the company been in the District of Columbia however, the result may have been different as D.C. is one of two states (Alaska being the other) that explicitly outlaws discrimination in the workplace based on family responsibilities.  

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Shoving or discrimination?

A male supervisor who was offended at a comment made by a female employee during a meeting, shoved the female employee on her arm.  The female employee sought treatment for the alleged pain from the altercation, and she also claimed to have suffered headaches, nightmares, and high blood pressure as a result of the incident.  The female employee eventually sued the company, claiming that her experience there constituted both harassment and a hostile work environment.  The company disputed her claim as legally flawed, and asked the court to dismiss her lawsuit without a trial.

Who won?
The company won.  A federal judge in Alexandria dismissed the case a few weeks ago after finding that there was no evidence that the shoving incident was motivated by the male supervisor’s hostility toward women.   This case is a good example of how federal discrimination laws are often wrongly invoked to remedy workplace situations that, while being inappropriate, do not rise to the level of actionable discrimination.  The terms “harassment” and “hostile work environment” have specific legal meaning in the context of federal discrimination laws, and only harassment or hostility that is motivated by a bias against one of the protected classifications (gender, race, age, disability, religion, etc.) can support a discrimination claim.  Here, the evidence showed that the supervisor was mad at a comment made by the female employee in a meeting, but that her gender had nothing to do with the supervisor’s angry act toward her.

The female employee in this case was not without recourse for the shoving incident.  She could have filed an assault and battery lawsuit against the supervisor, and probably also brought the company into the case under the theory of respondeat superior.  But by raising her grievance in the context of a federal discrimination lawsuit, the employee learned the hard way that these laws are not intended to address all problems in the workplace.