On March 19, 2012, the Mayor of the District of Columbia signed the Unemployed Anti-Discrimination Act of 2012 (the “Act”). The Act — which prohibits employers from discriminating against job applicants because they are unemployed — will go into effect following a statutorily mandated 30-day period of Congressional review and publication in the District of Columbia Register. The Act will be the first law in the country that prohibits employers from considering a job applicant’s unemployed status when making hiring decisions.

Under the Act, an employer may not refuse to consider or refuse to hire an individual because that individual does not have a job. An employer is expressly prohibited from publishing, in any medium, an advertisement for a job opening stating that unemployment disqualifies an individual for the job or disqualifies the individual from consideration for the job.

The Act provides three exemptions from the general rule prohibiting consideration of unemployment. First, an employer may require that an applicant possess a valid professional or occupational license necessary to qualify the individual for the job. This first exemption permits an employer to require applicants to have a job-based certificate, registration, or permit, and a minimum level of education, training, or professional field experience. Second, an employer may consider the reasons for an applicant’s unemployed status in assessing the applicant’s ability to perform the job. The second exemption contains a broad carve-out that allows an employer to consider the reasons for an individual’s unemployment “in otherwise making employment decisions about that individual.” Third and finally, an employer may limit its consideration of candidates for any job opening to its current employees.

The Act does not permit individual job seekers who are aggrieved by a prospective employer to file a private right of action against the employer. Instead, the aggrieved individual may file a complaint with the District of Columbia Office of Human Rights (“DCOHR”). The DCOHR will have one month to investigate the charges and respond to the complainant. In the event that the DCOHR finds an employer violated the Act, it will assess a civil penalty of $1,000 per claimant against the employer for a first-time violation. Civil penalties in the amount of $5,000 per claimant will be assessed for a second violation; penalties of $10,000 per claimant will be assessed for each subsequent violation. In no event, however, may an employer be assessed a total penalty over $20,000 for any one violation. The DCOHR is charged with distributing the funds it collects from employers to the individuals who complained about the employers.

In addition to the DCOHR’s enforcement rights, the Act contains broad retaliation and whistleblower protections that prohibit employers from interfering with the rights granted under the Act. Specifically, employers may not refuse to hire a job applicant or discharge any current employee because that person: 1) opposed a practice made unlawful by the Act; 2) filed a charge relating to a right provided under the Act; 3) gave information in connection with an inquiry relating to a right provided under the Act; or 4) testified in any inquiry relating to a right provided under the Act.

The District of Columbia is the not the first to consider protecting individuals based on unemployment status. Indeed, bills banning discrimination against the unemployed have been proposed in approximately half the states. Furthermore, the Equal Employment Opportunity Commission has decided that unemployment discrimination has an adverse impact on minority groups protected under existing federal laws and has begun investigating charges of unemployment discrimination.

Recommended Actions

Employers in the District of Columbia should remove any language from job advertisements that refer to an applicant’s current employment status. Employers should also thoroughly review their hiring policies and practices to eliminate any provisions relating to employment status. Employers should seek to avoid the appearance of screening out unemployed job applicants. To this end, individuals involved in a company’s interview and hiring practice should be updated on this new law and reminded not to refer to unemployment as contributing to any hiring decision. Employers must be mindful to distinguish between mere gaps in an applicant’s employment history and reasons for those gaps that relate to the applicant’s ability to perform the job. Consideration of the former is prohibited, but consideration of the latter is permitted.