Help Wanted: 23.5 Million Unemployed Americans Need Not Apply

Source: E. Ericka Kelsaw, Berkeley Journal of Employment and Labor Law, Vol. 34 no. 1, 2013
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Fifteen years ago, a Note in the Harvard Law Review presented a thought-provoking discussion on the jobless and their place, or lack thereof, in discrimination theory. The Note advocated that “being jobless makes one a member of a large and disparate social class, one that has heretofore often gone unrecognized.” In the ensuing fifteen years, no additional articles have considered whether the jobless deserve a place in discrimination theory, eerily confirming that the “invisibility of the jobless causes them to be virtually disregarded.”

This Article extends that investigation into the current controversy surrounding employers’ refusal to hire unemployed workers in the midst of a massive unemployment crisis. Although the unemployed as a class have historically experienced covert discrimination, in 2010, employers across the country began to boldly include in jobs ads that candidates “must be currently employed.” As a result of this alarming practice, federal, state, and local legislatures across the country responded by proposing legislation prohibiting unemployment discrimination.

Looking at unemployment discrimination through the lens of cognitive psychology, this Article supports the notion that unemployment discrimination should be prohibited. Employment status is an arbitrary and unfair hiring criterion and current antidiscrimination law fails to adequately protect the unemployed, a vulnerable and powerless group. The Article argues that federal, state, and local governments should amend their employment discrimination laws to include protection for the unemployed.