By Kwabena Appenteng
Ogletree Deakins
Almost three years ago today, a group of my law school classmates and I took our final-final exam. Although many of us did not have job offers at the time, our joy of completing three years of law school could not be tempered by the mere prospect ofhaving to send out a few resumes. Three years on, many of my former classmates along with thousands of other law graduates and professionals across the country are still looking for stable employment.
For employment lawyers on both sides, the increased unemployment of the past three years has brought a rise in clients and litigation, as termination-related lawsuits have dramatically risen. Now, in light of the high level of unemployment, people are calling for the number of those filing discriminatory hiring lawsuits to be re-evaluated.
When thumbing through resumes, most hiring managers are aware of one thing: Discriminating against a candidate because of his or her race, age, national origin, disability or sex could land the company in a lot of trouble. But what about the candidate whose resume shows little or no work experience for the past two or more years? To many hiring managers this candidate is not as attractive as the candidate who is currently working or who recently stopped working. Chances are the hiring manager will spend little time looking at these resumes. As a result, this leaves the unemployed unemployed because they are unemployed.
Recognizing this, in his recently unveiled American Jobs Act President Barack Obama included a provision prohibiting employers from refusing to hire a candidate because of the candidate's unemployment status. Under the proposed act, an employer would only have been allowed to consider a candidate's unemployed status if the assessment is job-related or consistent with business necessity.
With unemployment as high as it is and showing no immediate signs of abating, Obama's proposed protection of the workforce in the midst of a historic recession seemed to make perfect sense as a way to use the law to battle the unemployment problem. But despite its logic, the Senate voted against the act, relegating it to the recesses of the House. Ironically, around the time the Senate was voting against Obama's jobs proposal, over in England, members of the British government were quietly debating plans to do the opposite and remove employment discrimination laws as a way to create more jobs.
The British plan was simple: Employers in England are afraid to terminate problematic employees because they do not want to later be sued for unfair dismissal which, under British law, can be difficult to defend against. Consequently, members of the government proposed abolishing England's unfair dismissal laws, to enable companies to retain only their most efficient workers and not have to worry about defending unfair dismissal actions. This, the government contended, would ultimately lead to the creation of more jobs and to the growth of the economy. Weeks after the plans were leaked to the public, however, the government determined that they went too far and pulled them back.
To be frank, I felt that both proposals had some merit. As a lawyer that confronts claims of discrimination every day and counsels clients on the ramifications of various employment laws, I can appreciate the frustration of employers who feel impotent in dealing with problematic employees — it is these employees whom employment lawyers are most often forced to defend our clients against in court. Yet even when dealing with the most unfounded claim of discrimination, I could never make an argument for the abolition of discriminatory termination or hiring laws.
But putting unemployed job applicants in their own "protected class," as Obama's jobs proposal seemed to indicate is also something I cannot make an argument for, as every overconfident job applicant who is not offered a position could end up filing a lawsuit to appease their frustration. This would do nothing but lead to an increase in the number of frivolous lawsuits employers are forced to defend against. This may only cause employers to keep inefficient workers, fearing lawsuits from both an employee who has been fired and a candidate who was not hired. Although I cannot deny that if carefully crafted this is a practical option, as recently demonstrated by the state of New Jersey, which enacted its own law making it illegal for employers to discriminate against unemployed candidates.
Both Obama's proposal to protect the unemployed and the plans supported by members of the British government to abolish unfair dismissal laws were aimed at doing the same thing: Reducing the amount of unemployment both countries are facing. While Obama's plan focused on protecting unemployed workers, the British government's proposal centered on protecting employers and providing them with more latitude to make employment decisions. Two different approaches to one very worldly problem.
Although, personally, I believe that abolishing any law that restricts an employer's ability to terminate a worker is simply unviable, the longer unemployment remains an issue, the louder the calls may grow for the law to be employed in this way.