Neither Panacea, Placebo, Nor Poison: Examining the Rise of Anti-Unemployment Discrimination Laws

Pace Law Review, Sep 2017

Since 2009, the unemployment rate in the United States has remained above eight percent, which means that more than twelve million individuals have been looking for work at any given time. With so many affected individuals, unemployment has become an issue of public concern, particularly as stories describing employers refusing to consider currently unemployed candidates for job opportunities have proliferated. In response to these trends, about twenty states and the federal government have passed, or are considering, legislation designed to prohibit employers from discriminating against individuals based on their employment status. The goal of this Article is to survey the legislative activity, identify the factors driving it, and analyze its potential ramifications. I contend that it is unreasonable to project that this legislation will significantly reduce unemployment because there is only anecdotal data regarding the prevalence of discrimination against unemployed candidates in hiring and, regardless of the frequency of such a practice, none of the proposed or enacted legislation directly promotes job creation. However, I argue that the anti-unemployment discrimination legislation is a positive example of interest convergence in that it benefits the economy by reducing arbitrary discrimination in hiring and long-term unemployment. Furthermore, such legislation expresses a set of positive societal values and protects members of constitutionally-protected groups who are likely disproportionately impacted by current-employment requirements. I then discuss why the concerns advanced by the business community are overstated given the generally limited scope of the legislation, the lack of a private right of action, and the legally-approved uses of employment status as a proxy for characteristics about which a business might reasonably care. In sum, when taking an objective look, the anti-unemployment discrimination legislation is neither panacea, placebo, nor poison.

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Neither Panacea, Placebo, Nor Poison: Examining the Rise of Anti-Unemployment Discrimination Laws

Neither Panacea, Placebo, Nor Poison: Examining the Rise of Anti- Unemployment Discrimination Laws Unemployment Discrimination Laws 0 1 Seth Katsuya Endo 0 1 Recommended Citation 0 Seth Katsuya Endo, Neither Panacea, Placebo, Nor Poison: Examining the Rise of Anti- 1 This Article is brought to you for free and open access by the School of Law at Part of the Civil Rights and Discrimination Commons; and the Labor and Employment Law Commons - Since 2009, the unemployment rate in the United States has remained above eight percent, which means that more than twelve million individuals have been looking for work at any given time. With so many affected individuals, unemployment has become an issue of public concern, particularly as stories describing employers refusing to consider currently unemployed candidates for job opportunities have proliferated. In response to these trends, about twenty states and the federal government have passed, or are considering, legislation designed to prohibit employers from discriminating against individuals based on their employment status. Although several bills already have been enacted to date, nearly all of the articles on this subject have been authored by members of various law firms’ employment practices.1 These articles primarily focus on the legislative activity, discussing what employers need to know to anticipate and avoid liability. The one scholarly article that deals with this issue takes the mirror-image approach in that it primarily echoes the policy positions of employee-rights advocates and does not examine * Seth Katsuya Endo received his J.D. from New York University School of Law in 2007. In addition to working in private practice, he has clerked for several federal and state judges. 1. See, e.g., Katharine H. Parker & Daniel L. Saperstein, Emerging Issues in Hiring—Employer Screening Processes, 18 HR ADVISOR: LEGAL & PRACTICAL GUIDANCE 5, art. 2, (Sept./Oct. 2012 ). 1007 the specifics of any of the proposed or enacted bills.2 The goal of this Article is to survey the legislative activity, identify the factors driving it, and analyze its potential ramifications. I contend that it is unreasonable to project that this legislation will significantly reduce unemployment because there is only anecdotal data regarding the prevalence of discrimination against unemployed candidates in hiring and, regardless of the frequency of such a practice, none of the proposed or enacted legislation directly promotes job creation. However, I argue that the anti-unemployment discrimination legislation is a positive example of interest convergence in that it benefits the economy by reducing arbitrary discrimination in hiring and long-term unemployment. Furthermore, such legislation expresses a set of positive societal values and protects members of constitutionally-protected groups who are likely disproportionately impacted by current-employment requirements. I then discuss why the concerns advanced by the business community are overstated given the generally limited scope of the legislation, the lack of a private right of action, and the legally-approved uses of employment status as a proxy for characteristics about which a business might reasonably care. In sum, when taking an objective look, the anti-unemployment discrimination legislation is neither panacea, placebo, nor poison. II. Background A. Unemployment in the U.S. In January 2013, the U.S. Bureau of Labor Statistics estimated that more than twelve million Americans, or about eight percent of the civilian labor force, were unemployed.3 Approximately five million of these individuals had been out of work for more than twenty-seven weeks.4 In terms of distribution, the unemployment rate for whites was 7 percent, while the rates for blacks and Hispanics were 13.8 and 9.7 percent, respectively.5 The unemployment rates for adult men and for adult women were both 7.3 percent.6 The unemployment rate for the disabled was 13.7 percent against 8.3 percent for individuals without any disabilities.7 On the whole, unemployment rates for older individuals was slightly lower than the rates for their younger cohorts but a much larger percentage of older unemployed individuals are longterm unemployed.8 Political polls reflect these numbers with unemployment dominating as an area of concern. In September 2012, seventytwo percent of respondents in a national Gallup poll stated that economic problems are the most important problem facing the country today.9 Thirty-two percent of the total respondents specifically identified “unemployment/jobs.”10 In a related Gallup poll, more than three-quarters of respondents said that it is a bad time to find a quality job.11 Black, Hispanic, senior, and low-income respondents were particularly concerned about unemployment.12 B. Rising Perception that Prospective Employers Discriminate Against Unemployed Candidates In late May 2010, a staffing agency advertised a position with Sony Erics (...truncated)


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Seth Katsuya Endo. Neither Panacea, Placebo, Nor Poison: Examining the Rise of Anti-Unemployment Discrimination Laws, Pace Law Review, 2018, Volume 33, Issue 3,