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-
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Part of the Civil Rights and Discrimination Commons; and the Labor and Employment Law Commons
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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
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