Article main image
Mar 9, 2011

By John A. Gallagher

A recent article from the Huffington Post discusses an investigation by EEOC into whether employers are “discriminating” against the unemployed. This is analogous to inquiring, “Did you hear about the Titanic?”

We have blogged on this issue in the past, noting that our discussions with top recruiting agencies has made clear that many employers are giving specific instructions to not send any candidates who are unemployed.

This may be discrimination, but it is legal discrimination (no matter how unfair). The attached article from an unemployed watchdog group identifies the problem but offers little solution, because a good solution via amendment to federal labor laws does not and will never exist.

Making choices between employees in the workplace

Employers engage in legal employment discrimination each and every day. In fact, we all discriminate everyday. That is because “discriminate” means, in essence, to “make a choice.”

By and large, in almost every state in the United States, it is legal for employers to make choices between employees in the workplace — they can choose to promote someone they simply like more than someone else, they can choose to disproportionately increase the workload of someone because they disagree with their views on politics (in the private sector, that is!), they can promote a sister over a stranger to the family, or, they can demote someone who has less education in favor of someone who has been with the company a shorter time but has more education.

In other words, supervisors and managers can (and do) make choices about employees based upon their own preferences, even if others (including the employee, or the President, or the Pope for that matter), believe they have made a bad decision, a wrong decision, a biased decision. Just like we all make choices others may criticize.

These types of seemingly unfair, but totally legal employer choices are protected in almost every state by the employment at-will doctrine. That will never change.

And, it is these practices that constitute many employees’ biggest hurdle: how do I effectively deal with such “discrimination” at my job?

Employees faced with such circumstances will often lodge a “hostile work environment” claim with HR and hope that management rectifies the situation. And management usually does; sometimes, by engaging in effective conflict resolution.

More often, though, the response is to punch the complaining employee’s ticket out of town, first papering the file with Performance Improvement Plans, poor performance evaluations, write ups for innocuous violations, etc. Employees who are victimized by such a response will often call me and seek to sue for “retaliation.”

My response is to say: “It is only illegal to retaliate against employees who have complained about unlawful discrimination. You complained about lawful discrimination, and they can therefore fire you, no matter how crappy such an approach may seem to be to you, me, or Mother Theresa.”

Half of America’s unemployed actually quit

What does any of this have to do with discrimination against unemployed workers? Well, two things:

  1. “Discrimination” in the work place is by and large lawful unless it is based upon discrimination because of someone’s age, sex, race, national origin, religion, or disability, or if someone has sought to enforce their rights under statutes such as the Family and Medical Leave Act, the Fair Labor Standards Act, or state workers’ compensation laws. Therefore, discrimination based upon jobless status is not illegal;
  2. Roughly half of America’s unemployed workforce actually quit their jobs. We surmise, based upon experience, that a significant percentage of those quits were a response to the types of lawful discrimination discussed above, thereby potentially sealing their fate in the near term job market. Many others were fired for “willful misconduct.”

On the first point, it is important to understand why the rules against illegal discrimination exist. In a nutshell, the laws by and large are designed to protect employees who have been discriminated against because of things beyond their control — the way they were born, when they were born, where their ancestors came from, a disability they cannot fix. This is employment law in a nutshell.

Illegal retaliation? It is designed to protect only those who complain about unlawful discrimination from adverse employer responses. In other words, you only have a retaliation claim if the retaliation came about after you specifically complained about discrimination based upon race, age, disability, etc., or, after you asserted your rights under statutes such as FMLA, FLSA, etc.

However, many of the unemployed are out of work for reasons within their control, which include:

  1. Quitting their jobs because they were the subject of legal discrimination (no matter distasteful, unfair, or immoral);
  2. Engaging in willful misconduct at work. So, for those people, the law says, they are not out of work for reasons beyond their control. They were not fired because of the way they were born, or when they were born, or who their ancestors are, or because they are blind.

Therefore, the law says, since their situation (unemployment) was of their own doing (quitting or doing something bad justifying termination), it cannot be illegal to discriminate against them. In my view, despite the potential unfairness of the situation, there will never be a statute protecting the jobless from unlawful discrimination via hiring practices that per se exclude them for employment.

Employee side employment lawyers are on your side

I can hear now the cries of my clients: “But I cannot control that my boss is a jerk, or that he likes his sister more than me…” Yes, that is true, but the law presumes that you can control whether you quit your job, or get fired for willful misconduct.

Others will lament: “But I was laid off due to a reduction in force, and it was not my fault.” To which, sadly, our response is to say: “The law is imperfect, and bright line rules always leave some innocents out in the cold.”

America’s Workforce: Employee side employment lawyers are on your side. It is for that reason that blogs such as this one exist. The goal here is to help employees understand what treatment they are protected against, and what treatment they just have to “put up with,” or else face “jobless status” discrimination….

To make matters even worse, you probably will not get unemployment benefits if you quit your job or if you engaged in willful misconduct, at least not in Pennsylvania.

Our advice? If you are already out of work, find a job somewhere, anywhere, and get back on the horse. Then look for a more suitable job. Accept that your pay will be less, but by all means try and find a way to get off of unemployment and back into the workforce.

If you are still employed, understand what is lawful versus unlawful “discrimination.” Learn to deal with lawful discrimination in the same way we learn to deal with others’ disapproval of our life choices, such as those of our family relating to things such as choice of mates, finances, and how to spend our spare time. Do not quit your job, except in the most dire circumstances, and usually only if you believe you have been subject to unlawful discrimination of retaliation.

If you believe that you are facing illegal discrimination or retaliation, consult an attorney to figure out your options and best strategies.

This was originally published on attorney John A. Gallagher’s Employment Law 101 blog.

Get articles like this
in your inbox
Subscribe to our mailing list and get interesting articles about talent acquisition emailed weekly!