Patterico's Pontifications


Oh Goody: Obama Tries to Expand Federal Anti-Discrimination Law

Filed under: General — Aaron Worthing @ 7:47 am

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Okay get ready because here comes another long one.

Via Hot Air, we learn that Obama’s job bill contains a unique provision.  Let’s let the Hill explain it:

President Obama’s American Jobs Act, which he presented to Congress on Monday, would make it illegal for employers to run advertisements saying that they will not consider unemployed workers, or to refuse to consider or hire people because they are unemployed.

The proposed language is found in a section of the bill titled “Prohibition of Discrimination in Employment on the Basis of an Individual’s Status as Unemployed.” That section would also make it illegal for employers to request that employment agencies take into account a person’s unemployed status.

Basically they would add a new category to those protected from discrimination: the unemployed.  Of course, they can’t protect them in every state of employment, but if you apply for a job and are denied it “because of” your status as a person who is already unemployed, you can then sue them!

Because you know how to increase employment?  By increasing the risks and costs of hiring.

Now the language of this entire bill is here.  If it remains in its present form, let me offer some observations about it.

First, unlike many civil rights statutes this actually only protects one class.  To explain my point, I have to dispel a common myth.  Some people think that our civil rights laws only protect certain groups—certain “protected classes.”  I have heard people claim to me that black people were a “protected class” under the law, but not white people, that women were but not men, and so on.  For the most part that is wrong.  The laws don’t say, “don’t discriminate against black people.”  They say not to discriminate on the basis of race, or gender, or religion.  So if you are white, male, Christian, etc. and they discriminate against you based on your race, gender or religion, it is still illegal.  Mostly.  Of course there is such a thing as affirmative action and that is to a degree allowed.  But there are limits to that doctrine, as the New Haven firefighter case proved.

But there are two exceptions I know of in federal law.  First, under the ADA you are only protected if you are disabled.  And second, under the Age Discrimination in Employment Act, only persons over forty years old are protected—although by the language of the law, if you are 41 years old and face discrimination because you are “too young” you are still protected.  And if this law is passed, we will have a third category.

Because of this, Congress has to define the protected class.  The current definition reads as follows:

the term `status as unemployed’, used with respect to an individual, means that the individual, at the time of application for employment or at the time of action alleged to violate this Act, does not have a job, is available for work and is searching for work.

That all makes me wonder if perhaps a major defense in this action is that the person is not actually searching for work—that he or she is only going through the motions.

And then there is something in the operative language that is also interesting.  It says for instance that

It shall be an unlawful employment practice for an employer to… fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of the individual’s status as unemployed[.]

The key language there is “because of.”  Now at the very real risk of helping Congress write a better law, it is worth noting that the Supreme Court telegraphed in Gross v. FBL Financial Services, Inc. (2009) that when it sees language like that, it is not going to hold the company liable unless you can say that but for that trait they would have hired this person.  The compares to cases involved Title VII of the Civil Rights Act of 1964 which forbids the consideration of race, gender, etc. as even one of many motives mixed together.

All of this ties into the concept of a legislative dialogue that is very important to the thinking of the Supreme Court when it comes to statutes.  In Johnson v. Transportation Agency (1987), they quoted from one of my old professors when they said this:

As one scholar has put it, “When a court says to a legislature: `You (or your predecessor) meant X,’ it almost invites the legislature to answer: `We did not.’ ” G. Calabresi, A Common Law for the Age of Statutes 31-32 (1982). Any belief in the notion of a dialogue between the judiciary and the legislature must acknowledge that on occasion an invitation declined is as significant as one accepted.

In Johnson, the court was being asked to overturn United Steelworkers v. Weber (1979) which held that affirmative action was legal under Title VII.  In Johnson, the Court affirmed Weber in part based on the fact that Congress had made no effort to amend Title VII:

Weber, for instance, was a widely publicized decision that addressed a prominent issue of public debate. Legislative inattention thus is not a plausible explanation for congressional inaction. Furthermore, Congress not only passed no contrary legislation in the wake of Weber, but not one legislator even proposed a bill to do so. The barriers of the legislative process therefore also seem a poor explanation for failure to act. By contrast, when Congress has been displeased with our interpretation of Title VII, it has not hesitated to amend the statute to tell us so. For instance, when Congress passed the Pregnancy Discrimination Act of 1978, 42 U. S. C. § 2000e(k), “it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in [General Electric Co. v. Gilbert, 429 U. S. 125 (1976)].” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 678 (1983). Surely, it is appropriate to find some probative value in such radically different congressional reactions to this Court’s interpretations of the same statute.

In Gross, we saw a very different kind of dialogue.  Previously in Price Waterhouse v. Hopkins, a very divided court slightly endorsed the mixed motive approach. Since then Congress amended Title VII to endorse that approach, but noticeably did not do the same with the Age Discrimination in Employment Act.  So, the Court reasoned in Gross, this meant that Congress did not intent to endorse this approach with the ADEA, and thus the Supreme Court would not follow it.

And certainly any new laws passed since that 2009 opinion would be read this way.

But if that approach is adopted, it has implications for another proffered interpretation of our civil rights laws.  Once I explained to you guys (I forgot which post) the theory that discrimination against gay people was argued to be gender-discrimination under Title VII.  The theory went like this.  Suppose a coworker named Chris was dating a woman named Alice.  Now suppose two different outcomes.  In the first, Chris is “Christopher” and nothing bad happens.  In the second, Chris is Christina, and when Chris’ boss finds out she is a lesbian she is fired.  Thus the theory argues that Chris’ gender determines whether she is fired, thus it is sex discrimination to engage in anti-gay discrimination.

But if we take the legislative dialogue concept seriously, what does it imply that as late as 1990, Congress was putting this in the back of the ADA?

For purposes of the definition of “disability” in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.

It would seem that Congress specifically wanted to deny gay persons protection from discrimination as late as 1990 and to interpret the language of the Civil Rights Act of 1964 as prohibiting discrimination specifically allowed in the Americans with Disabilities Act of 1990 would be unfaithful to the statute.

[Posted and authored by Aaron Worthing.]

54 Responses to “Oh Goody: Obama Tries to Expand Federal Anti-Discrimination Law”

  1. It’s an interesting gray area on at least two fronts (that I can see): what are the limits of law as a tool for redressing the unreasonable, and what are the boundaries of freedom of association?

    I think the policy of “no unemployed person, regardless of the reason, will be considered for this job” is wildly unreasonable on its face. But it’s probably not illegal to be unreasonable (at least some of the time). It doesn’t strike me as a sane or fair way to do business, but it may also be that there’s no way to write a law to force a remedy.

    Freedom of association gets icky here, too. If a business can claim that “we only wish to associate with the tenacious, hard-charging types who kept their jobs even in an epic recession”, well a) there are other metrics to determine that type, and b) how about if I only want to associate at work with other “types” of my own preference and choosing?
    Why is one “type” preference acceptable, and another flat-out illegal? Where’s the principle in that?

    Complex questions.

    d. in c. (1e48bc)

  2. There are some other protected classes that work “one way”, besides disability and age.

    In housing, you cannot discriminate against people with kids (unless it is housing for seniors).

    And war veterans. You cannot discriminate against them when it comes to hiring (although you could, in theory, reject someone because they are NOT a war veteran).

    Kman (5576bf)

  3. You’re overthinking this, they don’t pay attention to precedent when drafting laws, they just wish something to be true, and then they do it,

    ian cormac (ed5f69)

  4. D in c

    I agree that excluding the unemployed is probably a bad idea.

    But this cure is worse than the disease.

    Aaron Worthing (109425)

  5. Ian

    My point was more limited. Whether congress actually thinks it thru, the courts will treat this law like they have.

    But its good to remember that the fundamental premise behind the theory of legislative dialogue is dubious. Congress is not NEARLY this thoughtful.

    Aaron Worthing (0d2ffc)

  6. If Obama walked into a crowded neonatal intensive care unit he would be the least qualified person in the room to be president.

    By the way … are employers really advertising jobs by specifying that no unemployed person will be considered? Really? How big a problem are we using the federal hammer on?

    Obviously, it is a way of intimidating employers into hiring the unemployed at the expense of the already employed. A a new form of affirmative action…. the gift that keeps on giving.

    quasimodo (e074b6)

  7. Aaron #3, I agree. We have lost sight of the notion that just because something smells “wrong”, it doesn’t follow that we’re obliged (or even empowered) to write a law against it.

    d. in c. (1e48bc)

  8. So if you don’t hire the unemployed doesn’t that mean they will be unemployed?

    DohBiden (d54602)

  9. This Administration is desperate and mentally ill.

    S. Carter aka J-Z (8d652e)

  10. Why do the obots insist no jews died on 9-11 even though that is a lie?

    Not only that they are Israel hating pigs.

    DohBiden (d54602)

  11. d in c, I hate to say this, because it’s heartless, but discriminating against the unemployed (meaning there is an employed applicant you’d rather hire) is completely understandable.

    At the very least, you know the currently employed is able to hold down a job. That’s true of most unemployed too, but you don’t know for sure.

    It’s exactly as Aaron says: it just adds another burden onto employers.

    Dustin (b2fb78)

  12. Why is one “type” preference acceptable, and another flat-out illegal? Where’s the principle in that?

    I see your point. I would normally say ‘whether the business makes money is what determines if its practices are ‘acceptable’, but the government already intrudes on this topic.

    As you agree, two wrongs don’t make a right.

    Dustin (b2fb78)

  13. This is all about moving the money around.

    From employers to trial lawyers.

    Amphipolis (b120ce)

  14. By the way … are employers really advertising jobs by specifying that no unemployed person will be considered?

    quasimodo – Yes they are. I have seen the qualifier on ads quite frequently but cannot tell you how common it it is on a national basis because I have only been interested in a small subset of advertisements.

    daleyrocks (bf33e9)

  15. I believe that cross-dressing at work is protected in California. We obviously need more protected classes, not fewer, so that everyone belongs to at least one. “When everyone is special, no one is.”

    So, some suggestions: smokers, the obese, neurotics, claustrophobics, agoraphobics, PTSD and OCD victims, Tourette’s and Asperger’s sufferers, anorexics, bullemics, Republicans and cat people.

    Of course, they’ll probably balk at Republicans.

    Kevin M (563f77)

  16. Kmart is really freakin creepy stalkerish.

    JD (cae88c)

  17. Aaron – I would also argue that the failure of Congress to pass ENDA means that Congress specifically wants to allow employers to refuse to hire someone because of their sexual orientation.

    (Thankfully, neither the state of my former home, the state of my current home, nor the state I’m working with, have legislatures which agree with Congress on this.)

    aphrael (a0f788)

  18. JD: kman actually has a point when it comes to veterans. He doesn’t have the same point with respect to kids, however, as the Fair Housing Act would also prohibit you from refusing to rent to people who don’t have children.

    [There seems to be a wierd exemption for, say, family housing on university campuses. It’s been more than two years since I’ve read the Fair Housing Act, so I don’t remember how the exemption works, but I’m very aware of it as I’m currently living in such housing.]

    aphrael (a0f788)

  19. Obama knows where the votes are for 2012. If he can get the unemployed behind him as another protected class, a class that has grown by leaps and bounds under his leadership, hey it works even better than the Clinton-Gore amnesty of 1994!!! Vote early vote often!

    Ipso Fatso (74cbec)

  20. Aphrael – Ms Doubtfire may very well have a point, like his pointy head. I was just noting how creepy it is how he follows AW around.

    How is NY, by the way?

    JD (68ff46)

  21. Are Appalachians still a protected class?

    daleyrocks (bf33e9)

  22. B.T.W., JD, you are a special person, or at least there is a special place in heaven waiting for you.

    daleyrocks (bf33e9)

  23. JD, you have been to the fellow’s supposedly soopersecret blog, right?

    He is so yornry, to borrow from “Team America.”

    Simon Jester (c8876d)

  24. The Democrats are trying to pass a blatantly unconstitutional law?

    Dog bites man.

    Dave Surls (70fb21)

  25. better to not hire at all

    happyfeet (a55ba0)

  26. If Obama walked into a crowded neonatal intensive care unit he would be the least qualified person in the room to be president.

    Comment by quasimodo —

    With the exception that you have to be age 35 or older.

    joe (93323e)

  27. If obama walked into a bar he’d sue it for racism.

    DohBiden (d54602)

  28. Aph:

    …the Fair Housing Act would also prohibit you from refusing to rent to people who don’t have children.

    Feel free to correct me, but I don’t think t=you’re right there. From the HUD webpage:

    Unless a building or community qualifies as housing for older persons, it may not discriminate based on familial status. That is, it may not discriminate against families in which one or more children under 18 live with:

    * A parent
    * A person who has legal custody of the child or children or
    * The designee of the parent or legal custodian, with the parent or custodian’s written permission.

    Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18.

    In other words, “familial status” is defined specifically as having kids, not as “whether or not” one has kids.

    Kman (5576bf)

  29. I was not aware that there is (or has ever been) a job opening which included “Unemployed need not apply”. “Irish”, yes (but that was long ago); “unemployed”, hmmm – are we SURE this happens?

    A_Nonny_Mouse (57cacf)

  30. With the exception that you have to be age 35 or older.
    Comment by joe — 9/16/2011 @ 9:34 am

    — Except that everybody else in that neonatal intensive care unit has indisputable proof of citizenship 😉

    Icy Texan (b9927e)

  31. better to not hire at all
    Comment by happyfeet — 9/16/2011 @ 9:21 am

    We have a winner of the John Galt Prize!

    Another Drew - Restore the Republic / Obama Sucks ! (5be9ff)

  32. Joe… 35 years? Like the constitution says in black and white? Since when has that mattered to a democrat?

    If it isn’t in the emanating penumbra it isn’t there.

    quasimodo (e074b6)

  33. Constitution?
    Vee don’t need no steenking constitution!

    Another Drew - Restore the Republic / Obama Sucks ! (5be9ff)

  34. I think we all agree with the substance of quasimodo statement –

    With the exception that you have to be age 35 or older.
    Comment by joe — 9/16/2011 @ 9:34 am

    – Except that everybody else in that neonatal intensive care unit has indisputable proof of citizenship 😉

    Comment by Icy Texan —

    Joe (bbbdbb)

  35. Of course that’s a job creating addition. More work for attorneys.

    jwarner (145f4b)

  36. Joe… 35 years? Like the constitution says in black and white? Since when has that mattered to a democrat?

    I wonder whether there exists a court that would rule that an Arab who’s turned 35 years of age on the Arab calendar, and is therefore about 33 years and 11 months old on the Gregorian calendar, is eligible for the presidency, because in his culture he’s attained the requisite age, and the constitution doesn’t specify which calendar is to be used.

    Milhouse (ea66e3)

  37. BTW, which calendar does the Supreme Court use in determining the opening session each year (First Monday in October)?

    Darrell Issa (5be9ff)

  38. Damn, I told you I hate SockPuppetFriday….

    Another Drew - Restore the Republic / Obama Sucks ! (5be9ff)

  39. It’s getting harder and harder to go on the internet and read stuff about our sneaky president’s latest ideas for new laws and regulations. It’s nausea inducing. Maybe that’s just me, though.

    Thank God we have a Justice Department who will see both the immediate and the potential problems with this proposed law and will set the president straight post haste.

    elissa (ca1a61)

  40. Glancing through the text of the bill.

    It looks to be almost impossible to actually get a judgment for a plaintiff on the bill as described. You would have to 1) find evidence that 2) the employment was denied solely because the candidate was unemployed. Even if you could find a smoking gun memo in discovery that the employee was turned down because he was unemployed, any civil defense lawyer with a lick of sense would point out that an employment decision is made on a multitude of factors. So the law sounds pretty, but is practically useless in actually helping the unemployed.

    Which is a long-winded way of saying, the law is less “bad” than it may appear and much more ineffectual than its proponents are arguing.

    IMO, the law doesn’t really help trial lawyers as much as HR personnel. Now, in addition to HR Senior Administrator of Minority Outreach, his two assistants, their two secretaries, and Joe — who we’re not quite sure what he does, but he’s here on time most days, so why mess with it — we also get HR Junior Administrator of Outreach to the Unemployed, her assistant, and Marcia, who makes coffee for Joe. One of the Unemployed Outreach staff is tasked with the job of making sure that every time someone submits an application, they check off a reason besides “currently unemployed” for why the application was denied.

    Which, in its own way, means that this congressional action saved or created a whole mess of jobs, checking off reasons why other folks weren’t hired.

    There’s a metaphor in there somewhere.

    Hadlowe (163d77)

  41. The definition of unemployed is probably a lot borader than the definitionb that is going to be used for the $4,000 tax credit. It pretty much encompasses anyone and the only thing this might interfere with is executive recruting where they only want to hire people already working. They coul;dn’t do that legally.

    It gets at a real problem, but nobody is being careful here about the drafting of the law.

    The whole effect will be vitiated by the fact that it would only apply when being unemployed is the sole deciding reason, which is only the case when a company has avoiding unemployed people altogether. But if a company basically discriminatedd – well cyou could get litigation. It gets too muich into thought torts.

    Sammy Finkelman (d3daeb)

  42. I don’t discriminate against the unemployed. That would be wrong. However, I do require that they have had continuous dental insurance for the previous 6 months.

    Kevin M (563f77)

  43. I was not aware that there is (or has ever been) a job opening which included “Unemployed need not apply”. “Irish”, yes (but that was long ago); “unemployed”, hmmm – are we SURE this happens?

    No, rather credit reports are run and if there is a serious drop in one’s credit rating as a result of late or unpaid bills, an HR person might reasonably assume (!) that the individual has been unemployed.

    Combined with the job history on a resume, and a gap between the last “real” job and the present, another strike will be added. Toss in a company – LLC for example – which fills the gap but is nothing more than the applicant promoting himself as an expert in a field i.e. independent consultant, then that is one more indication of unemployment. Strike three.

    Horatio (55069c)

  44. Please explain why affirmative action is not discrimination without torturing logic beyond any hope of repair.

    Ken Hahn (76cb4f)

  45. If you are going to restrict your hiring to people who are already employed, you will, inter alia, be raising wages: since someone who is currently employed is under less pressure to take a new job, employers will have to offer higher salaries and wages to hire such people. Hiring people who have been unemployed and are, presumably, more desperate, means that, overall, there is downward pressure on salaries and wages.

    Why does President Obama want to cut people’s wages?

    The economist Dana (3e4784)

  46. Yes there are job listings in the classifieds of newpapers that read “No Unemployed” or “Unemployed Applicants Will Not Be Considered”

    I’ve gone to apply for jobs and before they even give you an application, they ask “Are you currently employed?” Give the wrong answer and you don’t even get an application.

    Tsepes (e1b57d)

  47. Yes there are job listings in the classifieds of new[s]papers that read “No Unemployed” or “Unemployed Applicants Will Not Be Considered”

    Please provide links to some examples.

    ColonelHaiku (601b0d)

  48. Employers aren’t averse to hiring the unemployed. They are however nervous with employing long term unemployed. As an employer unless the person has a very good reason like a serious (but now recovered) illness long term unemployment is a red flag for a person who is problematic. Although the language in the bill as noted makes successful litigation difficult nevertheless it makes it possible and that has a cost. Its a good way to tell employers to outsource as much as they can either to temp agencies or elsewhere.

    cubanbob (ad2274)

  49. Here is a news article where they discuss that there were a handful of ads that listed unemployment as a disqualifies.

    And there is the old — you have been unemployed for > 1 year so are not not up to date on current technology reason/excuse.

    So, I guess it has happened, but it is not common practice and has attracted bad P.R. when done. So, even if true, I would expect the requirement to be “kept quiet”.

    BfC (2ebea6)

  50. It is my understanding, at least as the law was explained to me when I was a manager for a large national restaurant chain a lifetime ago and as it applied in CA, that if you were advertising for job applications, you had to present one to whomever asked for one, and accept it for consideration.
    If the law has been changed, please cite when that was done.

    Another Drew - Restore the Republic / Obama Sucks! (b23ca8)

  51. You will find with much research the it is the govt HR folks that will use such against an applicant. Oh and those that have contracts with the feds, especially those service companies that run our national parks and such. Cronies each and every one of them are.

    Most hire shit, and make sure those that stink the most git promoted to mgt. Well you know what such causes. But hell they all sit in federal lands where the feds actually set rates and stuff. These folks reel in dollars and hand out tokens if they fail. Lure people in, many from out of the country cuz it’s a big time tax break for them, all but totally abuse them, and those that do make it back out, usually made their airfare home.

    Those companies that run our parks and rec areas need a much closer look see than what they get. I can tell you as one that employed the same level of worker for 30 years, these pukers are beyond brutal to their employees.

    In the private sector it’s a curiosity that tells you to do a deeper check into an applicant.

    See govt folks need to be explicitly told what they can and can’t do with each and every step of each and every step of the jobs they are supposed to do. Any wonder they run out of time each and every day to actually perform any real services to taxpayers?

    [note: released from moderation. –Stashiu]

    RRR (51652d)

  52. You would have to 1) find evidence that 2) the employment was denied solely because the candidate was unemployed.

    Ummmm… Isn’t there a principle that if we have fewer and less confusing laws we will respect the Law to a greater degree?

    red111 (7b5f67)

  53. Also, I know this seems so obvious that we aren’t talking about it, but if Obama were really CREATING ((#(** jobs, this wouldn’t be an issue??!?!?!

    Like what happened to the labor shortages we were going to see when us baby boomers started retiring?

    red111 (7b5f67)

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