On December 3, 2013, the Common Council of Madison, Wisconsin
passed ORD-13-002111 to prohibit employers from
discriminating against job applicants based on their unemployment
The new Ordinance joins a growing number of laws to prohibit or
limit discrimination against the unemployed. New Jersey, Oregon and
the City of Chicago have outlawed advertisements that, in essence,
state the unemployed need not apply. In addition to banning
discriminatory ads, the District of Columbia and New York City have
curtailed the consideration of an applicant's unemployment
status in adverse hiring decisions. (New York City's law
affords a private right of action with the promise of lucrative
remedies.) The U.S. Congress and several state legislatures
also have introduced bills that target "unemployment
The rights and remedies provided in Madison's new Ordinance
are significant and rival those of New York City's landmark
law. To explain Madison's new Ordinance, this alert discusses
its coverage, prohibitions, enforcement, and remedies.
The new Ordinance amends Section 39.03 of Madison's Equal
Opportunities Ordinance, which protects a number of other classes
from employment discrimination. By amending the City's existing
discrimination statute, the coverage of the new Ordinance is
expansive. Although Madison's existing Equal Opportunities
Ordinance does not expressly define the term "employer,"
it broadly defines the term "employee" to
exclude only those individuals who are employed by their parents,
spouse, or child.
The new Ordinance prohibits (with exceptions)2
employers from discriminating against individuals based on their
unemployment status with respect to their compensation, or the
terms, conditions, or privileges of employment. Along these lines,
employers may not limit, segregate, or classify employees or job
applicants based on unemployment status so as to deprive them of
employment opportunities or otherwise adversely affect their
employment status.3 Moreover, it is unlawful to print or
publish any notice or advertisement that discriminates against the
Enforcement & Remedy
By amending Section 39.03 of Madison's Equal Opportunities
Ordinance, the new Ordinance allows an aggrieved individual to file
a complaint of discrimination with the Madison Equal Opportunities
Commission ("Commission") and, if successful, reap
various monetary damages and other relief. The Director of the
Madison Department of Civil Rights also may request the City
Attorney to file an action before any city or state administrative
agency and/or in the circuit court for Dane County, seeking
temporary relief before the Commission takes final action.
Moreover, an employer who violates the new Ordinance may incur a
While we have seen nothing to indicate that our clients or other
employers are using current employment status as a basis to screen
out candidates, employers in Madison should take the necessary
measures to comply with the new Ordinance. Employers may consider
putting a statement on their applications where there are questions
about prior work history that states "unemployment is not a
bar to employment."
Given recent trends, employers across the country also should
brace for continued legislative efforts to curtail
"unemployment discrimination." In addition to the growing
patchwork of laws, the Equal Employment Opportunity Commission
("EEOC") purportedly is investigating a number of charges
involving allegations of unemployment discrimination.
Overall, the hiring process has received a tremendous increase
in legislative and judicial attention in recent years at the
federal, state, and local levels. Indeed, a number of laws have
limited inquiries into or consideration of an applicant's
credit and criminal background histories and use of social media,
among other things. If you have any questions or concerns regarding
the new Ordinance or related developments regarding background
checks, please contact your Proskauer lawyer or any co-chair of the
Employment Law Counseling & Training Group.
1. The new Ordinance will take effect upon being
published in the Wisconsin State Journal.
2. The new Ordinance expressly allows employers to
inquire into or consider the facts or circumstances that led to the
3. The new Ordinance codifies similar proscriptions with
regard to employment agencies and labor organizations.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.
In prior articles, we have discussed various decisions by the National Labor Relations Board ("NLRB" or the "Board") protecting employee social media activity as concerted activity under Section 7 the National Labor Relations Act (the "Act").