Will Giving the Unemployed Legal Protection Get People Hired?

Obama's plan for preventing employment bias fuels a debate

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The nation's stubbornly high 9.1 percent unemployment rate has President Obama searching for alternative solutions to getting America back to work. One of those is making it illegal for employers to discriminate against employees if they are currently employed. As The New York Times reported, Obama's new jobs bill allows unsuccessful job applicants to "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." It's an interesting solution to a dire problem. Is it a good idea? Here are the arguments from the left and right:

Clearly employers are doing this, writes Mitchell Hirsch at UnemployedWorkers.org. He cites a study by the National Employment Law Project, which surveys some of the biggest online jobs sites, such as Monster.com and CareerBuilder.com, finding the following evidence of employment bias:

He says the demonstrated hiring bias serves as justification for the law. "If employers, recruiters, staffing firms and online job posting sites like CareerBuilder.com and Monster.com will not voluntarily do the right thing and end the lockout against unemployed workers in the job market  -- as Indeed.com has taken steps to do -- then new federal legislation is clearly needed," he writes.

That study is misleading though, counters Steve Chapman, a member of the Chicago Tribune's editorial board. "The National Employment Law Project trumpets that over four weeks, it found 150 ads excluding the unemployed on major job sites, such as Monster.com and CareerBuilder.com. It's a puny number, when you consider that CareerBuilder alone claims to list a million jobs."

Polling suggests the legislation is popular Laura Clawson at the Daily Kos cites a poll by Hart Research Associates showing that the public is adamantly opposed to the type of discriminatory hiring practices the legislation outlaws by a two-to-one margin. She quotes Democratic Congressman Hank Johnson saying Republicans "don't want to see the president be successful."

But theoretically it's a foolish strategy, writes Dan Indiviglio at The Atlantic:

Imagine that Joe is unemployed and applies for a job at XYZ Corp. It turns out XYZ likes to discriminate against the unemployed, so a current employee at ABC Corp, Sheila, is hired instead. Now for this to be legitimate discrimination, we must assume that Joe was at least equally qualified for the job that Sheila got. So they must have similar experience levels. Now that Sheila has left her job, ABC will need to hire someone. Joe will be a prime candidate for Sheila's old job, and it's statistically very unlikely that Sheila's previous employer is also a discriminator.

This story of labor market turnover shows that, even if this sort of discrimination does occur sometimes, it shouldn't cause unemployment to be higher or the duration of unemployment to be much longer than it would have been anyway

Statistically, there's no way this can put a dent in the unemployment rate, write the editors at National Review: "Some 14 million Americans are unemployed today, nearly half of them long-term unemployed, meaning they have been out of work for at least 27 weeks. Millions have been unemployed for more than a year, and the average spell of joblessness now runs uncomfortably close to a year — some 40 weeks. The president believes he can regulate some of that problem away with new discrimination claims. That is wishful thinking."

That's true but it doesn't mean it's not worth implementing, argues the study by the National Employment Law Project [PDF]. While acknowledging that economic growth is the only way to truly solve America's unemployment problem, the study argues that the law protects some unemployed workers from falling into a catch-22. "The legislation does not make the unemployed a 'protected class' under anti- discrimination laws. It is far more targeted, focusing solely on the process of recruiting and hiring." The study says the law recognizes the rights of workers "to pursue job opportunities for which they are qualified, without having to navigate a catch-22 that requires them to have a job in order to get a job."

But it discourages employers from hiring, writes Jazz Shaw at Hot Air: "What we don’t need is yet another excuse to go dragging employers into court, driving up their legal costs and, thereby, reducing the resources they have available to hire anyone. While I certainly sympathize with the instinct to see such hiring policies as unfair, (and stupid, frankly) the knee-jerk reaction shouldn’t be to set up a system to create an ever increasing death spiral of lawsuits clogging up the courts."

This article is from the archive of our partner The Wire.