During an address to Congress on September 8, 2011, President Obama presented the American Jobs Act, which includes the Fair Employment Opportunity Act of 2011 (the "Act"). The proposed Act, also entitled "Prohibition of Discrimination in Employment on the Basis of an Individual's Status as Unemployed," aims to prohibit employers and employment agencies from discriminating against unemployed job-seekers. If passed, the Act would essentially create a new protected class under Title VII; namely, the unemployed.

The Act defines the "unemployed" as individuals who do not have jobs but who are available and searching for work. Under the proposed Act, it would be an unlawful employment practice for employers with 15 or more employees and employment agencies to publish advertisements or announcements for jobs with provisions indicating that an individual's status as unemployed will disqualify him or her for any employment opportunity, or that an individual will not be considered or hired for a position based on his or her status as unemployed. Likewise, employers would be prohibited for failing to consider or refusing to hire someone because he or she was unemployed. It would further be unlawful for an employer to request that an employment agency take an individual's status as unemployed into account to disqualify him or her for consideration, screening, or referral for employment. Unemployed individuals would also be protected from retaliation under the proposed Act.

Employment agencies under the Act could not limit, segregate or classify any individual in any manner that would tend to limit his or her access to information about jobs or his or her consideration, screening or referral for jobs solely because of his or her status as unemployed.

Of significant note, however, the Act would not preclude an employer or employment agency from considering an individual's employment history or from examining the reasons underlying an individual's status as unemployed in assessing his or her ability to perform a job. The Act specifically states that employers may evaluate whether an individual's recent employment in a similar position is job-related or consistent with business necessity. As has been demonstrated in the context of employee criminal background checks, however, this may prove to be a relatively high hurdle.

The EEOC would have enforcement power under the Act with respect to complaints of discrimination based on unemployment status, and the procedures applicable to a claim alleged by an individual for a violation of the Act would be the same procedures applicable to a claim for a violation of Title VII. The remedies available for a violation of the Act would include injunctive relief, reimbursement of costs expended as a result of the unlawful employment practice, liquidated damages of up to $1,000 for each day of the violation, and reasonable attorney's fees and costs.

Although newly packaged as part of the proposed American Jobs Act, the Fair Employment Opportunity Act had been introduced before. Both the House and the Senate have previously introduced similar bills carrying the same name. In the House, Representatives Rosa DeLauro (D-CT, 3rd District) and Hank Johnson (D-GA, 4th District) introduced H.R. 2501 on July 12 2011. The bill currently has 35 cosponsors and has been referred to the Subcommittee on Health, Employment, Labor and Pensions. In the Senate, Senators Richard Blumenthal (D-CT), Kirsten Gillibrand (D-NY) and Sherrod Brown (D-OH) introduced S. 1471 on August 2, 2011, and the bill has been referred to the Committee on Health, Education, Labor and Pensions. Similarly, the EEOC recently held a public meeting to evaluate whether employers using the fact that an applicant was unemployed had a disparate impact on certain protected groups in violation of Title VII.Given the prevailing unemployment rate, the passage of the Act would impact most employers looking to hire prospective employees. As such, employers should continue to monitor developments with respect this proposed legislation. In the meantime, although the proposed Act states that it will not be applied retroactively, employers should begin evaluating their hiring practices and hiring criteria, and in particular review how "resume gaps" or similar periods of unemployment are considered in the hiring process.