The American Jobs Act and Discrimination Against the Unemployed

• Tax Cuts to Help America’s Small Businesses Hire and Grow;
• Putting Workers Back on the Job While Rebuilding and Modernizing America;
• Pathways Back to Work for Americans Looking for Jobs;
• Tax Relief for Every American Worker and Family;
• Fully Paid for as Part of the President’s Long-Term Deficit Reduction Plan

A significant element of the bill – as part of putting workers back on the job – would prohibit employers from discriminating against job applicants based on unemployment status. Under this proposal, it would be “an unlawful employment practice” if a business with 15 or more employees refuses to hire a person “because of the individual’s status as unemployed.” As in cases of discrimination based on race, color, religion, sex or national origin, this new legislation – if put into effect-  would allow for unsuccessful job applicants to sue and recover damages for violations.

White House officials view discrimination against the unemployed as a serious problem. In a radio interview last month, Obama stated that such discrimination made “absolutely no sense,” especially at a time when many people, through no fault of their own, have been laid off.

The proposal would also prohibit employment agencies and web sites from carrying advertisements that excluded currently unemployed individuals. Some employers and recruiters go as far as to post job opening notices and advertisements stating “no unemployed candidates will be considered.” In many instances, discrimination against the unemployed may actually be occurring but proving it poses quite a challenge. It isn’t easy for job applicants to show they were turned down for a position based primarily on their unemployment status. The EEOC has received reports of such advertising but has no available data on the prevalence of such practice.

George Miller of California, the top Democrat on the House Labor Committee counts himself among supporters of Obama’s plan which is modeled, in part, after bills introduced by Connecticut Democrats, Senator Richard Blumenthal and Representative Rosa DeLauro. DeLauro points out, “in a tough job market, where workers are competing against tens and sometimes hundreds of people for every available job opening, it is unjust for employers to discriminate against those who are unemployed.”

Critics believe that such discrimination is not common and that the proposed solution could expose employers to a barrage of lawsuits. “We don’t see a need for it,” says U.S. Chamber of Commerce’s Executive Director of Labor Law Policy, Michael J. Eastman. According to Eastman, the Civil Rights Act outlaws employment practices that have a “disparate impact on the basis of race, color, religion, sex or national origin,” unless an employer can show that a particular practice is “job-related for the position in question and consistent with business necessity.”

Representative Louie Gohmert, a republican from Texas, believes the president’s proposal would establish the unemployed as a new “protected class.” Representative Gohmert says if passed, the Act would encourage litigation by sending a message to millions of Americans: “If you’re unemployed and go to apply for a job, and are not hired for that job, see a lawyer. You may be able to file a claim because you got discriminated against because you were unemployed.” In his opinion, it is trial lawyers – not the unemployed – who will benefit.

When a person is out of work for any length of time, skills often atrophy and White House officials say discrimination could worsen the problem, creating a class of people who could be left behind even as the economy recovers. Under Obama’s proposal, the Employment Commission would be given power to enforce the ban on discrimination against the jobless but employers would have some leeway in considering the individual’s work history and reasons for unemployment as it relates to the ability to perform a job.

Employment Commission member Chai R. Feldblum sees it as “a perfectly reasonable policy step for the administration to suggest. It would allow people to bring a claim directly under this provision if they have been refused a job because of being unemployed, without having to go through the whole ‘disparate impact’ analysis.” Associate Professor at University of Colorado Law School, Helen L. Norton, says there are “many reasons why one might be unemployed in a tough economy. Current employment status serves as a poor proxy for successful job performance.”

On the other hand, labor law specialists representing employers view the president’s plan as an opening to another avenue for employment litigation and nuisance lawsuits.

I think we can all agree – regardless of whether you support the American Jobs Act or not – that something needs to be done in the way of getting millions of unemployed back in the job force, but it remains to be seen if this is the solution we’ve been waiting for.