Obama Proposes Protecting Unemployed Against Hiring Bias

Published: September 26, 2011 - New York Times

WASHINGTON — President Obama has not been particularly successful in fostering the creation of jobs. But he thinks he has found a way to pry open doors in the workplace for many of the unemployed, especially those who have been out of work for a long time.

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.

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

Mr. Obama’s proposal would also prohibit employment agencies and Web sites from carrying advertisements for job openings that exclude people who are unemployed. The Equal Employment Opportunity Commission has received reports of such advertisements but has no data to show how common they are.

Republicans and some employers criticized the White House proposal. They said that discrimination was not common and that the proposed remedy could expose employers to a barrage of lawsuits.

“We do not see a need for it,” said Michael J. Eastman, executive director of labor law policy at the U.S. Chamber of Commerce.

Already, Mr. Eastman said, 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, 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.

The Labor Department reports that 14 million people are unemployed. About 43 percent of them — six million people — are classified as long-term unemployed, having been out of work for 27 weeks or more. Of that group, nearly 4.5 million have been unemployed for a year or more. The average duration of unemployment is 40 weeks, the longest in more than 60 years.

Charges of employment discrimination tend to increase in a sluggish economy with a high jobless rate. In the 2010 fiscal year, which ended last Sept. 30, job bias charges filed with the employment commission reached a record of nearly 100,000, up 20 percent from 2007.

In many cases, lawyers said, it may be difficult for job applicants to show that they were turned down because they were unemployed. On the other hand, lawyers said, some employers and recruiters have posted job openings on the Web with the message that “no unemployed candidates will be considered.”

Mr. Obama’s proposal is modeled, in part, on bills introduced by two Connecticut Democrats, Senator Richard Blumenthal and Representative Rosa DeLauro. The top Democrat on the House labor committee, Representative George Miller of California, supports the legislation.

“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,” Ms. DeLauro said.

Skills often atrophy when a person is out of work, and White House officials said that discrimination could worsen the problem, creating a class of people who could be left behind as the economy recovers.

Under Mr. Obama’s proposal, the employment commission would be given new power to enforce the proposed ban on discrimination against the jobless.

Chai R. Feldblum, a member of the commission, said: “This seems like 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.”

Helen L. Norton, an associate professor at the University of Colorado Law School in Boulder, said: “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.”

But Lawrence Z. Lorber, a labor law specialist who represents employers, said the president’s proposal “opens another avenue of employment litigation and nuisance lawsuits.”

Mr. Obama’s proposal would give employers some leeway. In deciding whether to hire a person who is unemployed, they could consider the person’s work history and examine why the person is unemployed if that was relevant to ability to perform a job.