NEW YORK (MainStreet) -- The American Jobs Act, President Barack Obama's $447 billion jobs bill, aims to put a serious dent in the country's high unemployment rate by offering a variety of incentives to employers, including the temporary elimination of payroll taxes for new hires and a $4,000 credit for hiring long-term unemployed workers.
In addition to those carrots, the bill wields a big stick: It would prohibit employers from discriminating based on a person's employment status. An employer could not legally consider the fact that an applicant is unemployed when making a hiring decision.
The Obama jobs bill wouldn't allow employers to discriminate against jobless applicants, posing a difficult legal question.
The decision to add employment status to the list of protected classes is especially important because many employers have
about hiring applicants who are among the approximately 14 million unemployed Americans. In fact, many businesses
explicitly say in their job postings
that only employed applicants will be considered for a position, a practice that would become illegal under the proposed law.
Such job postings would, of course, go the way of "No Irish need apply" signs if the bill becomes law. But without such explicit signals of discrimination, could a rejected applicant really prove that he or she was discriminated against for not having a job?
"In the absence of direct evidence of discrimination, the individual will be required to show that he or she was qualified for a position that he or she did not receive, and that the employer rejected this person's candidacy and continued to look for similarly qualified candidates, or in fact hired another individual not of the protected class," says Michele Randazzo, an employment lawyer with the law firm Kopelman and Paige PC.
"Presuming that the employer provides credible reasons, I think it is going to be pretty hard to prove that an employer didn't hire someone simply because he or she was unemployed," Randazzo says.
That doesn't mean rejected applicants won't file lawsuits and try to prove they were passed over for being unemployed. And that could get very costly for employers.
"As I understand it, the
Equal Employment Opportunity Commission is going to enforce this," says Jason Carney, director of human resources at WorkSmart Systems, a human resources outsourcing firm. "To answer an EEOC charge, the cost to do it right starts in the thousands."
There's no denying unemployment discrimination is a real problem, and the fact that a company may have to pay to defend against discrimination lawsuits is not reason enough to deny protection to the unemployed. But critics also say there's a big difference between discriminating on the basis of race or gender and considering gaps in an applicant's employment -- the latter of which they say is a legitimate avenue of inquiry.
"I can understand the concern being raised about this proposal, as someone's employment history is normally part of an employer's consideration when making hiring determinations," Randazzo says. "Gaps in a resume, such as unexplained lengthy periods of employment, often do raise red flags for employers."
Carney agrees, noting that the law would mean employers could no longer ask applicants to explain employment gaps -- which could, ironically, wind up hurting applicants who have a good explanation for why they're out of work.
For these reasons, Carney says he doesn't expect this part of the law to pass, though he says a good compromise may be to simply prohibit job postings that say unemployed applicants won't be considered. While that won't do much to remove the inherent biases many employers have against the long-term unemployed, it would at least provide more of an opportunity for the unfortunate 9.1% to get their foot in the door and impress their interviewer.
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