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Jasmine A. Williams

excerpted from: Jasmine A. Williams, “Unemployed (And Black) Need Not Apply”: a Discussion of Unemployment Discrimination, its Disparate Impact on the Black Community, and Proposed Legal Remedies, 56 Howard Law Journal 629 (Winter, 2013) (191 Footnotes) (Student Comment)

It is a sociological cliche [sic] that racial antagonism is intensified in periods of economic distress. . . . Because race is an important consideration in the competition for jobs, we can expect that whites and Negroes have attempted to shift the burden of the depression upon each other, but that as usual the dominant group has been more successful.

This statement was written in 1940 in reference to race and class during the Great Depression; however, the pattern it describes is just as clear today in American society. The overall unemployment rate has been extremely high over the last few years. The average unemployment rate climbed from 5.8 percent in 2008 to 9.6 percent in 2010. Throughout the “Great Recession,” the unemployment rate for the black community has been twice that of the population as a whole. In many black communities, unemployment has hit what some consider “crisis proportions.” It is likely that the true unemployment rate is even higher than officially reported.

The unemployment disparity between the black community and the general community is not surprising because it reflects the status quo existing long before the recession began. Several factors, such as racial discrimination and access to education, are offered to explain the gap. The country's desire to find a solution to fix the current unemployment problem has exposed a hiring practice with the potential to greatly exacerbate the already disturbing disparity between unemployment in the black community and unemployment in the overall community--discrimination against the unemployed.

The controversy of discrimination against the unemployed was brought to public attention in 2010 when a recruiter hired by Sony Ericsson to staff its Atlanta headquarters stated in a job posting, “[n] o unemployed candidates will be considered at all.” After this incident garnered wide public attention, the National Employment Law Project (NELP) published a report in July of 2011 reviewing the most prominent online job-listing websites over a four-week period. NELP researchers found that there were over 150 employment ads listed on Internet job sites that stated, “unemployed need not apply,” or listed “currently employed” under required job qualifications. Although the study done by NELP was fairly limited in scope, it nevertheless showed that “small, medium and large employers, for white collar, blue collar, and service sector jobs, at virtually every skill level” excluded the unemployed. Because this practice is used across a large segment of the job market and there are record numbers of unemployed people in the United States today, the proper way to resolve this problem is the subject of great debate. Lost in the debate, however, is sufficient focus on how to remedy the disparate impact these discriminatory hiring practices have on the African American community.

The public response has generally been outrage, especially among job seekers. Lawmakers have responded by enacting legislation to stop such practices in hiring advertisements. For example, New Jersey enacted a law banning language that discriminates against the unemployed in job advertisements, and several states have similar legislation pending. President Obama also included a measure banning such advertisements and creating a civil cause of action against employers who discriminate based on employment status in his 2011 Jobs Act.

While many people view this as a serious problem that must be solved, there are also many individuals who believe that the potentially adverse effects of this alleged “unemployment discrimination” have been greatly exaggerated. Some argue that the statistics used by NELP and other studies do not accurately reflect the limited scope of the practice. Regardless of how miniscule an effect this practice is believed to have, during these times of high unemployment and economic distress, any barrier to employment has the potential to be destructive to society. According to Michael Hirsch, “42.4 percent of the nation's 13.9 million unemployed workers have been out of a job for more than six months. That's by far the highest share of long-term unemployed since the government started keeping records a half-century ago.” “Expert[s] . . . warn[ ] that the longer a person goes jobless, the greater the atrophy in skills and ambition, and the more likely that person is to drop out of the workforce entirely.”

In 2011, the Equal Employment Opportunity Commission (EEOC) released a report showing that job hiring discrimination complaints reached a record high. This report indicates that “[t] he . . . [EEOC] received just shy of 100,000 charges from citizens during the 2011 fiscal year, the most logged in a single year in the agency's 46-year history . . . .” This report does not include claims related to discrimination on the basis of employment status. Employment discrimination experts attribute the increase in discrimination to the strained economy, claiming “less scrupulous employers have more opportunities to discriminate in their hiring.” It is clear that even if employers discriminating based on employment status affect a small percentage of jobseekers, taken in the aggregate with the heightened discrimination related to the economy, it is a serious issue that must be addressed.

Discrimination against the unemployed is having a negative impact on the job-seeking community in general. However, it is having an extremely adverse impact on the black community. There are many proposed solutions to this problem, although few propose to address the effect of the practice in the black community. These several prominent proposed remedies can be divided into two categories: private suits and legislative remedies. Private suits describe the proposal to create a cause of action that would allow applicants to bring lawsuits for discrimination based on unemployment status. Legislative remedies refer to proposed remedies such as hiring tax incentives and government-sponsored work training programs.

This Comment argues that a private cause of action is an inadequate and unrealistic remedy to address the problem of unemployment discrimination. 

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