On Thursday the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to discuss barriers that the unemployed face in the job market. During the hearing, Committee Chairman Tom Harkin (D-IA), along with other Democratic senators, promoted legislation introduced this term that would prohibit discrimination against job applicants based on their unemployment status. Ranking member Mike Enzi (R-WY), on the other hand, said that incidents of outright discrimination against the unemployed, including claims of job advertisements banning unemployment applicants, were “greatly exaggerated,” and that bills targeting unemployment in hiring were misguided. He further argued that Congress should instead focus its attention on the promotion of job training.

This hearing is the latest effort to address unemployment discrimination. In February, the EEOC held a public meeting to address what it considers an “emerging practice” of excluding currently unemployed job-seekers from applicant pools. On month later on March 16, Rep. Henry Johnson (D-GA) introduced a bill that would make unemployment discrimination unlawful. His bill, the Fair Employment Act of 2011 (H.R. 1113), would amend Title VII of the Civil Right Act to add “unemployment status” to the list of protected classes. Rep. Johnson, along with Rep. Rosa DeLauro (D-CT), introduced yet another unemployment-related bill on July 12. The Fair Employment Opportunity Act of 2011 (H.R. 2501) would prevent employers and employment agencies from refusing to consider or offer a job to an unemployed individual; prohibit the publication in any medium of an advertisement or announcement for a job that includes language indicating the unemployed need not apply; and entitle those discriminated against to bring a civil action against the employer or employment agency for actual, compensatory and punitive damages. Sen. Richard Blumenthal (D-CT) introduced a companion bill (S. 1471) in the Senate on August 2, 2011.

The provisions of the Fair Employment Opportunity Act were ultimately incorporated into President Obama’s jobs bill, the American Jobs Act (S. 1660). Although this comprehensive bill failed to advance in the Senate, provisions have been voted on in standalone form. On November 21, for example, the President signed into law a measure that provides employer tax incentives for hiring unemployed veterans. These benefits were initially included in the American Jobs Act.

During the hearing, several panelists and lawmakers voiced support for these legislative efforts. Ranking member Enzi, however, questioned whether bills making employers potentially liable for unemployment discrimination would be counterproductive. Enzi argued that it would be difficult for employers to prove that their hiring decisions were not based on an applicant’s unemployment status, and that the fear of lawsuits could curtail their hiring efforts. He added that such legislation would result in a “profitable new field” for class action attorneys.

During questioning, Christine Owens, Executive Director of National Employment Law Project, admitted that inquiries about an applicant’s resume gaps could “open a door” to an unemployment discrimination lawsuit, but emphasized that under the terms of the proposed legislation, the burden is on the individual to make a showing that his or her unemployment status was a factor in the employer’s adverse decision.

Toward the end of the hearing, Sen. Harkin stated that, as one of the first orders of business, he is willing to bring a bill up for a Committee vote in January that would reauthorize the Workforce Investment Act. This bill provides for a wide range of workforce development and training programs through state and local organizations.

A list of hearing witnesses, links to their testimony, and an archived webcast of the hearing itself can be found here.