Push Is On Against Long-Term-Unemployment Discrimination

With increasing efforts under way to ensure the long-term unemployed aren't discriminated against, employers would be wise to stay 10 strokes ahead of the wave.

Wednesday, March 26, 2014
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With momentum picking up nationwide in the quest to eradicate discrimination against the long-term unemployed, employers are being advised to take the necessary steps to make sure they're on the right side of the issue, and the law.

The latest call to arms in this war against such discrimination came Feb. 19, when the U.S. Department of Labor announced the availability of about $150 million in grants to prepare and place those facing long-term unemployment into jobs. About 20 to 30 grants ranging from $3 million to $10 million would be awarded to programs focused on individual counseling, job-placement assistance and work-based training that facilitate hiring for jobs in which employers currently use foreign workers on H-1B visas.

"These grants are part of President Obama's call to action to help ensure that America continues to be a magnet for middle-class jobs and business investment," said U.S. Secretary of Labor Thomas E. Perez at the time. "We need to do everything we can to help employers expand and grow while, at the same time, remembering that those who have been out of work through no fault of their own deserve a fair shot.", in his Jan. 28 State of the Union address, Obama also made a reference to the long-term unemployed deserving a "fair shot" at being considered eligible for open jobs when he announced he and Vice President Joe Biden would be meeting at the White House with employers the following Friday to start working together to tackle the problem.

At that meeting, Obama announced best-practice guidelines for employers to follow, including making sure job advertisements do not discourage or discriminate against the long-term unemployed and hiring practices be changed so they are no longer disadvantaged simply because they are out of work.

"We've got to get these folks back in the game," Obama said at the meeting. "It's a cruel Catch-22. The longer you're unemployed, the more unemployable you may seem."

White House officials told the New York Times later that about 300 businesses, including 21 of the nation's 50 largest companies and 47 of the top 200, had agreed to draft up new hiring policies that ensure applicants who have not worked in a long time are not unfairly screened out.

If pressure to cease and desist such discrimination isn't enough coming from Washington, consider that 10 states -- Florida, Hawaii, Iowa, Maine, Massachusetts, Minnesota, New Hampshire, New York, Pennsylvania and Virginia -- are mulling legislation proposed in 2013 to make such practices illegal. Consider, too, that New Jersey, Oregon and the District of Columbia already have such laws on their books.

Indeed, the stage is set for many different laws to be governing different states and it will be up to employers, their hiring managers and their HR leaders to be well-versed in all the states where their organizations do business.

Will every state have its own anti-long-term-unemployment law one day soon? James Boyan, an employment law attorney with Pashman Stein in Hackensack, N.J., thinks not. "There are states active in this and states that aren't as active in this," he says.

Still, he adds, "[employers] want to be on the right side of this issue going forward [with such] momentum going on to pass more of these laws."

What's more, says Boyan, actively working to avoid discrimination against the long-term unemployed "is also part of being a good corporate citizen."

"Think about it; it's to U.S. employers' advantage [not to discriminate] because it's going to help the economy, help personal incomes and spending behaviors in general," he says. "The discriminating employer is potentially contributing to the economy's inability to really recover quickly."

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More importantly, as Peter Cappelli -- HREOnline's talent management columnist, and professor and director of the Center for Human Resources at the University of Pennsylvania's Wharton School, wrote in an August 2011 column, "wouldn't unemployed candidates be more grateful for a job, more motivated to perform well and more likely to work cheaper? That alone should make them worth considering."

How rampant is this discrimination a few years later? In a more recent -- March 2013 -- column, Cappelli notes that, even though the unemployment rate is coming down, the ranks of the long-term unemployed - more than 26 weeks out of work - has barely changed because only those actively looking for a new job can be considered unemployed. Boyan agrees it's hard to guess in actual numbers, but he would not imagine many large employers out there (with adequate legal counsel) that have bright-line rules or policies in place not to hire people with these long gaps in their employment histories. Yet it's also hard to always see and prove, like every other form of discrimination.

As Cappelli writes in his earlier column, "the extent to which employers who do not explicitly prohibit unemployed individuals from applying, but nevertheless screen them out after they've applied, is unknown - but a reasonable guess is that the latter is much more common than the former."

"Refusing to consider unemployed job applicants doesn't seem like a smart idea," Cappelli writes, "but organizations do many things that don't make sense. That doesn't necessarily suggest that we should prohibit every silly thing they do.

"Where it starts to get tricky," he continues, "is when the actions of employers spill over to affect stakeholders other than their shareholders. This is certainly one of those cases. Is it egregious enough to merit legislative prohibition? I guess we'll find out."

We have, and apparently, it is.

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