Affirmative Action Plan is the Solution to Discrimination Against the
We have in the past posted on the rampant,
insidious and harmful discrimination against the unemployed.
TLNT has posted an article of mine positing that, despite good intentions,
such discrimination illegal (akin to discrimination based upon race, sex, age,
etc.) is an unworkable solution. We have suggested instead that
something like to 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
An anti-jobless discrimination bill will have the opposite effect.
At Least 6.2 Qualified Americans Are Have Been Out of Work for More Than 6
Recent statistics indicate
that more than 6.2 million Americans have been unemployed for more than 6
months. 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 3 currently-employed people that
President Obama, who certainly cannot be accused of attacking the jobless
problem with excessive vigor, stated
yesterday 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.
Making Discrimination Against the Unemployed Illegal Is Not a Workable
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?!"
Any legislation making "unemployed" a protected status such as
race or age, which is apparently being proposed by some (unrealistic)
Democrats, 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.
The EEOC Will Be Overwhelmed With Charges of Discrimination
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.
The 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 so 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.
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
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.
The Burden on Companies Would Be Unfair and 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. 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.
And, did I mention the potential for class action litigation?
The Solution is an Affirmative Action Program
No, let's put some muscle into this critical project. Just 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.
Read more articles
about employment law issues at Philadelphia Area Employment Lawyer, a blog
by John A. Gallagher.
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