[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.
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.]