Help Wanted: 23.5 Million Unemployed Americans Need Not Apply

64 Pages Posted: 26 Jul 2013

See all articles by E. Ericka Kelsaw

E. Ericka Kelsaw

Texas Southern University - Thurgood Marshall School of Law

Date Written: July 24, 2013

Abstract

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 “[b]eing 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 anti-discrimination 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.

Keywords: unemployment discrimination, cognitive psychology, stereotype, bias

JEL Classification: J64, E24, J23

Suggested Citation

Kelsaw, E. Ericka, Help Wanted: 23.5 Million Unemployed Americans Need Not Apply (July 24, 2013). Berkeley Journal of Employment and Labor Law, Vol. 34, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2298227

E. Ericka Kelsaw (Contact Author)

Texas Southern University - Thurgood Marshall School of Law ( email )

3100 Cleburne Street
Houston, TX 77004
United States
(713) 313-1143 (Phone)

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