The old adage states that “it is always easier to find a job when you have a job.” However, some lawmakers are concerned that this has become a self-fulfilling prophesy during this period of economic recovery, and have created legislation to protect job seekers who are unemployed.

On March 19, 2012, Washington Mayor Vincent Gray signed the “Unemployed Anti-Discrimination Act of 2012” (“the D.C. Act” or “the Act”), which has undergone its 30-day congressional review, and should go into effect as soon as it is published in the D.C. Register. Along with a similar statute in New Jersey and pending legislation in several other states, this law adds to a growing trend of legal protections for job seekers who are unemployed. Employers should carefully consider these new legal protections in their hiring process.

Scope

The Unemployed Anti-Discrimination Act of 2012 broadly applies to any person, or any person acting on his or her behalf, who employs or seeks to employ for compensation one or more individuals for a position located in the District. The only exceptions to the scope of the Act are for domestic household workers. “Potential employees” protected by the Act are individuals who have applied to an employer for a vacant position of employment located in the District. Further, “status as unemployed” means any individual who, at the time of applying for employment, does not have a job, is available for work and is seeking employment.

Prohibited Actions

The D.C. Act is unique from similar laws that have been enacted or proposed in other states because it treats unemployment status as a protected class. As a result, no D.C. employer may fail or refuse to consider for employment any potential employee on the basis of his or her status as unemployed.

Like the New Jersey statute and other pending legislation, the Act prohibits job advertisements or announcements that state that an individual’s status as unemployed disqualifies him or her from an open position. The Act also prevents employment agencies from refusing to consider or hire individuals based on their status as unemployed.

Like other nondiscrimination statutes, the Act contains broad protections for retaliation and whistleblowers. Thus, employers are prohibited from: (1) interfering with, restraining or denying the exercise of any right defined in the Act, and (2) failing or refusing to hire or discharging any employee or potential employee who exercises any right under the Act.

Exemptions

Importantly, the D.C. Act does not prohibit employers from “examining the reasons underlying an individual’s status as unemployed in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual.” The Act also does not prohibit employers from posting advertisements stating that an open position is limited to applicants who are currently employed by the advertising employer, or from posting legitimate job-related qualifications for an open position, including the following:

  • Holding a current and valid professional or occupational license;
  • Holding a certificate, registration, permit or other credential; or
  • Having a minimum level of education, training or professional, occupational or field experience.

Enforcement

The Act does not provide for a private right of action. Instead, the D.C. Office of Human Rights (DCOHR) is responsible for investigating all complaints under the Act and determining whether to assess a penalty. DCOHR can assess penalties of $1,000 per claimant for a first violation, $5,000 per claimant for a second violation and $10,000 per claimant for a subsequent violation, but not to exceed a total of $20,000 per violation. DCOHR will collect any penalty and distribute the funds among any employees or potential employees who allege and prove a violation of the Act.

Ensuring Compliance

Employers in the District should review carefully any job announcements or advertisements to ensure they do not contain a prohibition on job seekers who are currently unemployed. Employers should also be careful not to use, or appear to use, a potential employee’s status as unemployed as a screening tool, rather than carefully considering the applicant’s underlying relevant work experience and job skills.