May 7, 2012
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.
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
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.
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
- 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.
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.
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.
For further information or assistance in complying with the Unemployed
Anti-Discrimination Act of 2012, please contact the authors or any member of the
McGuireWoods Labor and