The New Civil Rights: The “Currently Employed” Requirement, Disparate Impact, and New Legislation to Protect Unemployed Workers and Job-Seekers
By Jennifer Jolly-Ryan
Countless people struggle to find a job in a competitive job market, despite good qualifications. Although the news media reports that job numbers are improving, the problems of unemployment particularly loom for people of color, older workers, and people with disabilities. They are often unemployed longer than other workers and job-seekers and suffer the disparate impact of job ads that require “current employment” as a prerequisite to getting hired. The harsh reality is that the longer a job-seeker is unemployed, the closer a job-seeker becomes to being permanently unemployed. Job ads that require “current employment” as a litmus test to work exacerbate the problem.
Although traditional disparate impact analysis under the civil rights laws is useful to help some unemployed workers and job-seekers, there are huge gaps in the laws to help other unemployed workers and job-seekers who have lost jobs and have been unable to quickly recover them, through no fault of their own. Gap filling legislation, extending protection from discriminatory job ads and hiring practices to all unemployed workers, while at the same time allowing employers to reasonably consider the reasons for an applicants’ unemployment, would help level the playing field for all unemployed workers and job-seekers in a very difficult job market. Current civil rights provide the structure and balance needed to make the new legislation protecting all unemployed workers work and get unemployed workers back to work.
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