Madison, Wisconsin Bans Discrimination Against the Unemployed

Author: David B. Weisenfeld, XpertHR Legal Editor

December 11, 2013

Wisconsin's capitol city has joined the small but growing list of cities and states to prohibit discrimination against job applicants based on their employment status. On December 4, the Madison Common Council amended the city's Equal Opportunities Ordinance to add unemployment to the list of protected categories during the hiring process.

As a result, Madison employers will be banned from posting job advertisements that discriminate against the unemployed. This prohibition also covers discrimination based on compensation, as well as the terms, conditions or privileges of employment.

The National Employment Law Project has called the new Madison ordinance one of the strongest anti-discrimination laws in the nation because of its enforcement provisions. Under the ordinance, individuals who can show they have been the victims of discrimination based on employment status can recover monetary damages. Also, employers may be subject to fines for any violations.

However, the Madison law allows employers to ask about the facts or circumstances that led to an applicant's unemployment.

Madison joins New York, Chicago and Washington, DC as prominent cities that have passed recent ordinances banning hiring discrimination against the unemployed. New Jersey became the first state to prohibit this type of discrimination in 2011, and Oregon followed suit in 2012.

These laws largely mirror the Equal Employment Opportunity Commission's position on the issue. The EEOC has questioned use of "current employment as a sign of quality performance," and has suggested that the practice of screening out unemployed applicants may have a disparate impact on women, certain racial and ethnic minorities and individuals with disabilities.

More than a dozen states have considered laws banning discrimination against the unemployed. Of those states, California came the closest to enacting such a measure, but Governor Jerry Brown vetoed it in September 2012.