The issue of providing protection for the unemployed from discrimination in hiring has been discussed by my colleagues on this blog previously.  It continues to be discussed both in California and Washington D.C., and last week the U.S. Senate held a hearing on the barriers the jobless face in trying to become re-employed.  Christine Owens from the National Employment Law Center testified that the principal reason for our current high unemployment is a lack of jobs.  A real revelation, right?  She also stated that while there is no data on how often it occurs, the next most important factor in continuing unemployment is discrimination against a person’s status as unemployed when employers make hiring decisions.  Support for legislation making it illegal to discriminate in this manner was voiced by additional speakers and members of the committee.  Several pieces of legislation have been introduced in Congress over the past six months, culminating in President Obama submitting to Congress in September a bill prohibiting discriminating in hiring based on a person’s status as unemployed.  The bill also allows aggrieved individuals to file suit , provides for damages of up to $1,000 each day of a violation, and allows for recovery of attorney’s fees and costs. 

Lacking from the discussion in the Senate hearing and from those supporting such legislation is an explanation of how adding additional liability to employers, especially liability directly tied to the hiring process, will help increase the number of jobs and ease unemployment.  Both nationally and within California, a frequently heard argument in support of adding this new protected status is that unemployment discrimination has a disparate impact on women and minorities.  In reviewing the latest California Labor Market Review, it reveals that men are unemployed at a slightly higher rate than women, at 12.2% vs. 11.5%.  However, the report also shows that whites are unemployed at the rate of 11.5% vs. 13.2% for non-whites.  (Data from October 2011)  Whether this difference is enough to support a disparate impact argument, I don’t know, especially where there is no data showing a link between unemployment discrimination and the higher rate of unemployment for minorities.

Well-qualified candidates are no doubt frustrated by the failure of some employers to consider them solely on the basis of their employment status.  It gets even more difficult as the length of unemployment continues.  Of the unemployed in California, 33% have been without a job for 52 weeks or longer.  Businesses that choose not to consider unemployed persons for their job openings will in many cases be hurting themselves by refusing to consider well-qualified applicants.  Efforts to change this mindset are to be applauded, and many employers and job posting sites have responded positively to societal pressure to reverse their prior positions on this issue.  However, the answer is not to legislate and create additional liability for businesses, especially when we are counting on employers to grow and add new jobs.