Reluctant to Hire the Unemployed? Too Bad, Says NYC

Michelle Chen Jan 28, 2013

How do you get a job without experience? How do you get experience without a job? And so it goes for millions of people trapped in a dismal cycle of joblessness.

On Wednesday, New York City took a step to help unemployed workers out of that spiral. The City Council approved a groundbreaking measure to bar employers from using unemployment status as a deciding factor in reviewing job applicants. It would also outlaw job advertisements that make explicit reference to employment status itself as job criteria. By updating the city’s anti-discrimination policies, the legislation would enable individuals to file complaints or sue if they are “available for work, and seeking work” and have been unfairly denied consideration simply because they’re out of work.

The bill, passed by a 44-to-4 margin, is just a modest action against the crisis of chronic unemployment. But it draws a line against a relatively invisible form of discrimination fueled by the Great Recession. According to the latest employment statistics, the number of those who have been unemployed for 27 weeks or more has remained stubbornly high, constituting about 39 percent of the unemployed. In New York City, where unemployment is particularly severe,an analysis by the think tank Fiscal Policy Institute found that in 2012, about half of unemployed residents spent more than six months seeking work. The average duration of unemployment in 2012 topped 40 weeks in New York City. Women, blacks, and workers in older age brackets have been especially hard hit.

The legislation follows a 2011 report by the National Employment Law Project (NELP) that called hiring discrimination against the unemployed a “perverse catch-22.” According to NELP’s survey of ads on major job listing sites like, many employers openly practice this form of discrimination:

NELP’s snapshot of jobs postings identified more than 150 ads that included exclusions based on current employment status, including 125 ads that identified specific companies by name. The overwhelming majority of the offending ads required that applicants “must be currently employed.” and accounted for more than 75 percent of the exclusionary ads NELP identified. Staffing firms were prominently represented among those companies identified with the practice of excluding unemployed job seekers, accounting for about half of all the postings.

A nondescript phrase like "must be currently employed" may suggest a seemingly rational desire to screen out applicants with large, dubious gaps in "work experience" on their resume. But this masks more insidious biases. While people of color, women, and people with disabilities—categories that generally overlap with systemic employment barriers—are often protected under existing state and federal civil rights protections, discrimination against unemployed people is a less obvious way of unfairly denying applicants a fair chance.

The prejudice against of jobless workers is psychologically complex and sometimes subconscious. NELP explains that in some cases, the bias could be just one arbitrary method of narrowing an applicant pool. But some employers may actually “presume that workers who are currently employed are more likely to be good performers and have a stronger work ethic than those who are unemployed.” The flipside of this presumption, of course, is that if others haven’t hired you yet, you’re “damaged goods.” Ironically, such herd mentality might hurt workplaces seeking the most talented applicants because it instantly rules out potentially qualified people just because others have. In many cases, that rejection is simply the byproduct of an economy that has indiscriminately excluded struggling workers from an ever-shrinking supply of decent jobs.

Culturally ingrained impressions are difficult to change, but a legal prohibition can at least force biased employers to think twice before tossing a jobless job-seeker’s resume. NELP advocate Mitchell Hirsch tells Working In These Times via email that the legislation will both encourage employers to do the right thing and punish those who don’t with possible civil penalties. Ideally, he says, the measure would compel “employers, human resource personnel, recruiters and staffing firms to evaluate their internal practices and change those behaviors that cause unemployed job-seekers to be arbitrarily excluded from consideration for jobs, regardless of their experience and qualifications.” One forward-looking mechanism in the legislation to ensure compliance is an employer education campaign mandated under the city’s Human Rights Commission.

The New York City law follows a similar initiative in Washington, D.C. Oregon and New Jersey have also enacted bans on job advertisements that preempt unemployed applicants. NELP has also advocated for federal legislation (which ultimately stalled) barring prejudicial use of employment status in hiring and recruiting.

Though Mayor Michael Bloomberg opposes the New York City legislation as an invitation for frivolous lawsuits and complaints, NELP points out in a fact sheet that the anti-discrimination ban would be fairly limited, applying to situations of explicit bias (like a policy stated in a job listing). Moreover, unemployment must be the decisive criterion for rejection, so an employer could still rule out an applicant whose period of unemployment had a direct bearing on the skills or abilities required for the job.

New York lawmakers haven’t often been kind to the working poor lately. Budget pressures have imposed devastating cuts on vital social services. A bill to grant New York City workers mandatory paid sick leave has been stalled by business-friendly Council Speaker Christine Quinn despite nationwide support from women's rights and labor groups.

But with political momentum and common sense militating in favor of fair treatment for casualties of the recession, the ban on discrimination against the jobless has gained the support of a veto-proof council majority. On WNYC Radio, Quinn defended the measure as a reasonable protection for people seeking an honest job: “All that happens is that good, qualified people, who happen to be unfortunately be unemployed, have the right to apply for a job and get it.”

Now, who could say no to that?

This article was originally published on the In These Times Working Blog.

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