Monday, September 26, 2011

Burdening Commerce

Or How to Make $5K in Your Jammies. 

From the American Jobs Act, SUBTITLE D – PROHIBITION OF DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF AN INDIVIDUAL'S STATUS AS UNEMPLOYED, employers may not explicitly dismiss currently unemployed applicants when hiring a new employee [Section 374 (a)(1) and (b) (1)]. This prohibition is disgusting! An employer should have the right to use whatever criteria he deems necessary in determining the best fit applicant for the position he is offering; he is taking all the risks in engaging that person for employment. But wait! It gets far worse. Explicit language prohibiting the hiring of the unemployed is easy to prove; what's threatening and will by all logic produce a chilling effect on any hiring is the second part of the remedies in that subsection.

(2) In any claim alleging a violation of any other subsection of this Act, an individual, or any person acting on behalf of the individual as set forth in Section 375(a) of this Act, may be awarded, as appropriate, the remedies available for a violation of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16b(a)(1)), section 201(a)(1) of the Congressional Accountability Act of 1995 (2 U.S.C. 1311(a)(1)), and section 411 of title 3, United States Code, except that in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the individual, damages may be awarded in an amount not to exceed $5,000.
This is the language regarding what constitutes a violation by an employer: 


(a) Employers- It shall be an unlawful employment practice for an employer to--
(2) fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of the individual's status as unemployed; 

Let me highlight that for you: (2) fail or refuse to consider for employment, or fail or refuse to hire, an 
individual as an employee because of the individual's status as unemployed;

Tell me, how can one determine whether his previous unemployment is the reason I have decided not to hire him if I have not made it explicit - which is prohibited in section 374 (a) (1)? 

The most disturbing part of this Subtitle of the proposed legislation is its purported necessity:
This subtitle may be cited as the “Fair Employment Opportunity Act of 2011”.
(a) Findings- Congress finds that denial of employment opportunities to individuals because of their status as unemployed is discriminatory and burdens commerce by--
(1) reducing personal consumption and undermining economic stability and growth;
(2) squandering human capital essential to the Nation's economic vibrancy and growth;
(3) increasing demands for Federal and State unemployment insurance benefits, reducing trust fund assets, and leading to higher payroll taxes for employers, cuts in benefits for jobless workers, or both;
(4) imposing additional burdens on publicly funded health and welfare programs; and
(5) depressing income, property, and other tax revenues that the Federal Government, States, and localities rely on to support operations and institutions essential to commerce.
(b) Purposes- The purposes of this Act are--
(1) to prohibit employers and employment agencies from disqualifying an individual from employment opportunities because of that individual’s status as unemployed;
(2)  to prohibit employers and employment agencies from publishing or posting any advertisement or announcement for an employment opportunity that indicates that an individual’s status as unemployed disqualifies that individual for the opportunity; and
(3) to eliminate the burdens imposed on commerce due to the exclusion of such
individuals from employment.
Someone found that not hiring unemployed people burdens commerce, undermines economic stability and growth, depresses Federal revenue, and imposes burdens on welfare programs, but that the threat of $5000 lawsuits every time an unemployed applicant is denied employment will encourage job growth?

Oh, yeah. Nothing greases the wheels of expanding employment opportunities like the threat of suing the employers for not hiring someone who has been thus far unable to get or unwilling to accept a job. 

You can't make this stuff up. Oh wait. Someone actually did. And they are leading our country. 


S. Misanthrope said...

If it's any comfort, such provisions are essentially unenforceable. An employer would have to make the idiotic mistake of giving a reason for rejection, which no savvy employer would ever do due to the risk of lawsuit if you say the wrong thing. Of course this really hurts those looking for jobs who now have no idea what they need to improve on. I actually think it's much more of a burden on job-seekers than employers. Particularly at small companies, I've many times seen employers blatantly violate various discrimination laws i.e. asking directly or indirectly about religion or children/pregnancy. They aren't at serious risk because you'd have to prove that you otherwise would have gotten the job if not for that one thing, which is basically impossible unless the employer flat-out says or writes that (which of course they would never do unless suicidal or insane). They would also need to be worth suing i.e. deep pockets in order for a claimant to find a lawyer to take the case, so in all likelihood laws like these will rarely be enforced.

Lynne said...

Thanks for the comment.

I agree that it would be near impossible to prove, however, the fact that such a provision may find its way into the laws of this country is sickening. Furthermore, you are right about it negatively impacting those looking for work rather than the employers. Untended consequences!

It is the principle that this type of law could be seen by those who run this country as a good thing that I was ranting against.

Finally, I'm not so sure about the need for deep pockets in order to sue here, either. I'm guessing that there are plenty of folks willing and able to act on behalf of those "violated."