A recent Huffington Post article discusses an EEOC investigation into whether employers are “discriminating” against the unemployed. This is analogous to asking, “Did you hear about the Titanic?” We have blogged on this topic in the past, noting that our conversations with major recruitment agencies have made it clear that many employers are giving specific instructions not to send any candidates who are unemployed.
This may be discrimination, but it is legal discrimination (no matter how unfair). The attached article from an Unemployed Watch group identifies the problem, but offers little solution, because a good solution through amending federal labor laws does not exist and never will.
Employers engage in legal employment discrimination every day. In fact, we all discriminate every day. That’s because “discriminating” essentially means “making a choice.”
In general, in almost every state in the United States, it is legal for employers to choose among employees within the workplace: they can choose to promote someone they simply like more than someone else, they can choose to disproportionately increase the someone’s workload because you disagree with their views on politics (in the private sector, that is!), they may promote a sister over a stranger to the family, they may demote someone who is less educated in favor of someone who has been with the company a shorter time has more education, etc.
In other words, supervisors and managers can (and do) make decisions about employees based on their own preferences, even if others (including the employee, the president, or the Pope) believe they have made a poor decision. a wrong decision, a biased decision. Just like we all make decisions that others can criticize.
These types of seemingly unfair but totally legal employer choices are protected in almost every state by the employment-at-will doctrine. That will never change.
And it is these practices that constitute the biggest obstacle for many employees: how can I deal effectively with such “discrimination” in my job? Employees faced with such circumstances will often file a “hostile work environment” claim with human resources and hope management will rectify the situation. And management usually does; sometimes, participating in the effective resolution of conflicts. More often, however, the response is to punch the complaining employee’s exit ticket by first papering the file with performance improvement plans, poor performance reviews, innocuous violation reports, and so on. Employees who are victims of such a response often call me and seek to sue for “retaliation.”
My response is to say, “It is only illegal to retaliate against employees who have complained of unlawful discrimination. You complained of unlawful discrimination and therefore you can be fired, no matter how horrible that approach seems to me or Mother Teresa”.
What does all this have to do with discrimination against unemployed workers? Well, two things:
1) “Discrimination” in the workplace is generally legal unless it is based on discrimination based on someone’s age, sex, race, national origin, religion, or disability, or if someone has tried to assert their rights in under statutes such as the Family and Medical Leave Act, the Fair Labor Standards Act, or state workers’ compensation laws. therefore, discrimination based on unemployment status is not illegal;
2) about half of the unemployed US workforce actually quit their jobs; We assume, based on experience, that a significant percentage of those resignations were in response to the types of legal discrimination discussed above, potentially sealing their fate in the short-term job market. Many others were fired for “willful misconduct.”
On the first point, it is important to understand why the rules against illegal discrimination exist. Simply put, the laws in general are designed to protect employees who have been discriminated against for things beyond their control. The way they were born, when they were born, where their ancestors came from, a disability they can’t fix. This is employment law in a nutshell.
Illegal retaliation? It is designed to protect only those who complain of unlawful discrimination from adverse employer responses. In other words, you only have a retaliation claim if the retaliation occurred after you specifically complained about discrimination based on race, age, disability, etc., or after you asserted your rights under statutes like FMLA, FLSA etc
However, many of the unemployed are out of work for reasons within their control, including:
1) Quit their jobs because they were subjected to legal discrimination (no matter how disgusting, unfair, or immoral);
2) engage in intentional misconduct at work. So for those people, the law says, they are not out of work for reasons beyond their control. They were not fired because of how they were born, or when they were born, or who their ancestors are, or because they are blind.
Therefore, the law says, since their situation (unemployment) was of their own free will (quit or do something wrong that warrants termination), it cannot be illegal to discriminate against them. Therefore, in my opinion, despite the possible injustice of the situation, there will never be a statute that protects the unemployed from unlawful discrimination through hiring practices that per se exclude them from employment.
I can hear my clients screaming now: “but I can’t control that my boss is an idiot, or that he likes his sister more than me…” Yes, that’s true, but the law assumes you can control whether he quits. your job or get fired for willful misconduct.
Others will lament, “But I was fired due to downsizing, and it wasn’t my fault.” To which, unfortunately, our response is to say: “The law is imperfect, and clear rules always leave some innocents out in the open.”
America’s Workforce: Employee Side Employment Lawyers are on your side. That is why blogs like this exist. The goal here is to help employees understand what treatment they are protected against and what treatment they simply have to “put up with” or else face “unemployed status” discrimination…
To make matters worse, you likely won’t get unemployment benefits if you quit your job or committed willful misconduct, at least not in Pennsylvania.
Our advice? If you’re already out of a job, find a job somewhere, anywhere, and get back on the horse. Then look for a more suitable job. Accept that your salary will be less, but by all means try to find a way to get out of unemployment and back into the workforce.
If you’re still employed, understand what legal versus illegal “discrimination” is. Learn to deal with legal discrimination in the same way we learn to deal with others’ disapproval of our life choices, like our family’s regarding things like choosing a mate, finances, and how to spend our free time. . Do not quit your job except in the most extreme circumstances, and generally only if you believe you have been subjected to unlawful discrimination or retaliation.