The unemployed — a protected category coming to a jurisdiction near you

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By Philip Wang

It is now illegal in New York City for employers to discriminate against job applicants based on their employment status. This June 2013 amendment to New York City’s Human Rights Law (NYCHRL) — a law already relished by plaintiffs’ attorneys for its extraordinarily broad definition of discrimination — defines ‘unemployment’ as ‘not having a job, being available for work and seeking employment’.

This is the first law defining unemployment status as a protected class along with the more familiar litany of protected classes: age, race, creed, colour, national origin, gender, disability, marital status, partnership status, sexual orientation and alienage/citizenship status. It is definitely not the last. There are more than two dozen pending proposals for amendments to federal, state and local laws in order to ban discrimination against the unemployed.

Other jurisdictions have joined this seismic shift but along more narrow lines. For example, the states of New Jersey and Oregon as well as the City of Chicago have banned job advertisements stating that the unemployed need not apply. And the District of Columbia has made it unlawful for all employers and employment agencies in the district to consider the unemployed status of an applicant in employment and hiring decisions; that law also bars employers and employment agencies from indicating in an advertisement for a job vacancy that unemployed individuals are disqualified for the position…

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