A Ban on Discrimination Against the Unemployed? Bad Idea, Mr. President

We have in the past written about the rampant, insidious and harmful discrimination against the unemployed.

TLNT earlier posted an article of mine positing that, despite good intentions, making such discrimination illegal (akin to discrimination based upon race, sex, age, etc.) is an unworkable solution. We have suggested instead that something like an affirmative action plan for the unemployed (i.e.a requirement that a certain percentage of all new hires be unemployed candidates) is the solution to the problem.

In fact, I believe that such a plan could provide a substantial remedy for the joblessness crisis, and could thereby stimulate our economic recovery.

An anti-jobless discrimination bill could very well have the opposite effect.

6.2 million qualified Americans out of work over 6 months

Recent statistics indicate that more than 6.2 million Americans have been unemployed for more than six months (there are currently an estimated 14 million unemployed Americans overall). There are great candidates out there who are unemployed, and companies are in fact hiring every day. Why not require that companies hire one currently-unemployed person for every three currently-employed people that are hired?

President Obama, who certainly cannot be accused of attacking the jobless problem with excessive vigor, stated this week on a radio show that discrimination against the jobless “makes absolutely no sense.”

Geez, Mr. President, and with all due respect, it certainly seems to make a lot of sense for a certain segment of corporate America, and I don’t think your opinion is going to change the practice.

It’s time to do something, Mr. President. Now.

Legislation is not a workable solution

The president continued by referring obliquely to (unspecified) pending legislation that would make it illegal to discriminate against the unemployed. Reading between the lines, some of the legislation at issue would make it illegal to state in advertisements or job postings “Unemployed Need Not Apply,” or words to that effect.

Oh, that will fix the problem. Seriously? “We can’t publicly state we won’t hire jobless candidates? What are we going to do?!”

Other legislation seeks to make discrimination against the unemployed unlawful, and gives aggrieved individuals the right to sue in federal court. Click here to see the text of the proposed Fair Employment Opportunity Act of 2011.

This act would make the “unemployed” a “protected” status similar to race, sex or age, and is being proposed by some (unrealistic) Democrats; no Republicans are sponsoring this bill.

In my view, it will never see the light of day. No way. Any qualified legislator knows that such a law would result in a flood of litigation such as we have never seen in America.

Why? Based upon my experience, an overwhelming majority of unemployed people who apply for but are denied a job for which they are qualified will seek to file a lawsuit alleging that their jobless status was the reason they were not hired.

EEOC will be overwhelmed with discrimination charges

Presently, employees who believe they have been subjected to illegal discrimination must, before filing a lawsuit in court, file a charge of discrimination with the EEOC, which is then duty-bound to investigate such charges.

Although I do not believe Congress will ever pass a “anti-jobless discrimination” bill, if one is passed we can assume that aggrieved persons will first have to file a charge with the EEOC. In which case, perhaps the unemployment crisis will come to an end after all.

Why, you say? Because the EEOC will have to hire about 5 million people to handle all of the charges of discrimination that will promptly be filed by many of our more than 14 million unemployed workers. Oh, the chaos.

Federal court system would be overwhelmed

Also, if an anti-jobless discrimination law is passed, we can expect that our entire federal judiciary will walk off of the bench in protest. That is because, if a federal law is passed making such discriminatory acts illegal, then the putative victims of such discrimination will have the right to file a lawsuit in federal court after they have exhausted their EEOC charge obligations.

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Can you imagine? More than 14 million unemployed people having the right to file a federal lawsuit against corporate America on the ground of jobless discrimination?! Many on the federal bench already view employment-based lawsuits as huge headaches due to the sheer volume of such cases. I can tell you that many unemployed people are angry and afraid, and definitely feel they are being discriminated against based upon their jobless status.

Did I mention the class action litigation that would be spawned by such a law? It doesn’t take much imagination to foresee that large employers will quickly become the target of large groups of candidates challenging the hiring practices and processes of the our corporate titans. Class action employment lawyers will be lining up to take these cases! Federal judges will quickly ponder the benefits of retirement.

An anti-jobless discrimination bill would be a recipe for disaster for our federal court system. Take the incredible financial stress the unemployed are under, add a pinch of paranoia and mix in unfettered access to the federal courts? Fugettaboutit. Not gonna happen.

Burden on companies would be unfair, expensive

Look, I represent employees in lawsuits against employers on a regular basis. I freely admit that I believe sometimes companies fire people based upon illegal factors. Moreover, I certainly think that companies do discriminate against the unemployed in making hiring decisions. Even so, I believe that the impact of a law banning discrimination against the unemployed would have on companies would be unfair, and potentially crippling to any economic recovery.

Choosing qualified candidates for employment is not an easy task, It is a very nuanced, sophisticated process that takes into account many factors beyond what is found on a resume.

Subjecting companies to litigation simply because they selected a currently-employed candidate over an unemployed one will not stimulate the economy, but will have the opposite effect. Fears of expensive, time consuming, resource draining lawsuits will stultify the desire of companies to make new hires. Further, the cost of such lawsuits will chill economic growth, because companies will be spending time and money on lawsuits, rather than running their business.

So my objection to a law banning jobless discrimination is not based upon a belief that it does not happen — it does. However, I believe that the proposed cure is more dangerous than the illness it seeks to cure.

The solution may be an affirmative action program

No, let’s put some muscle into this critical project with a realistic, easy to administer law that provides a relatively painless, non-divisive solution without creating a new cottage industry of employment-related litigation. How?

Simply require that a certain percentage of currently-unemployed qualified candidates be hired by each company making new hires. It really is very simple. And, easy to confirm and enforce to boot.

The numbers won’t lie. When a person is hired, companies are required, under numerous federal laws, to file paperwork with the government. Now, just add a simple ingredient — a monthly report from all employers stating what percentage of new hires were previously unemployed. Violators will be prosecuted.

Now, that’s a workable solution.

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

John A. Gallagher, Esquire, is the president of the Gallagher Law Group, P.C., a Philadelphia-area law firm concentrating its practice almost exclusively on representing individuals with workplace issues. After 15 years of representing major corporations in employment litigation, John Gallagher opened his firm in 2006, and since that time has represented only employees. Contact him at jag@johnagallagher.com.