Mr. Obama’s jobs bill would prohibit employers from discriminating against job applicants because they are unemployed.
Under the proposal, it would be “an unlawful employment practice” if a business with 15 or more employees refused to hire a person “because of the individual’s status as unemployed.”
Unsuccessful job applicants could sue and recover damages for violations, just as when an employer discriminates on the basis of a person’s race, color, religion, sex or national origin.
This would make a prima facie case for discrimination fairly easy. You’re unemployed. You weren’t hired. Next, companies would have to engage in litigation to show that they had a legitimate nondiscriminatory reason for not hiring the unemployed person.
Representative Louie Gohmert, Republican of Texas, said the president’s proposal would, in effect, establish the unemployed as a new “protected class.”
Mr. Gohmert said the proposal, if passed, would encourage litigation by sending a message to millions of Americans: “If you’re unemployed and you go to apply for a job, and you’re 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.”
“This will help trial lawyers who are not having enough work,” Mr. Gohmert said.
Update: More from Richard Epstein.
Moving on, the most ghastly AJA innovation is its new-fangled antidiscrimination law that now makes it essentially illegal to discriminate against unemployed workers. The multiple objections to this provision have been ably summarized by Chicago-based columnist Steve Chapman. Yet they all boil down to one simple point. Hounding employers into hiring unemployed workers will do nothing to create jobs.
The bill’s antidiscrimination provision is intended to prevent employers and employment agencies from stating that all job applicants must be currently employed. Choking off that information is a disservice to just these workers. With countless applicants for each position, nimble employers can easily manufacture some individuated reason to turn down a given worker. So why send desperate workers on a wild goose chase? It is better to have greater job mobility, so that when one worker shifts jobs another place is opened.
There is obviously at least some loose correlation between the inability to get a job today and the ability to hold one tomorrow. It hardly helps the economy to require employers to place their entire businesses at risk by making them hire workers they deem unsuitable. To allow for this possibility, the basic statutory command is quickly attenuated with a giant exception that allows the employer to look at the individual’s employment history and qualifications in making hiring decisions, or by finding out how the applicant has fared in a similar or related job.