Neither Panacea, Placebo, Nor Poison: Examining the Rise of Anti-Unemployment Discrimination Laws

Abstract

Within the past several years, dozens of news stories have described employers refusing to consider currently unemployed candidates for job openings. In response to this perceived trend, 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. This articles details the proposed and passed legislation, identifies the factors driving it, and analyzes its potential ramifications. After surveying the field of legislation, I contend that it is unreasonable to project that the laws 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 passed legislation directly promotes job creation. But 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, expresses a set of social values, and protects members of constitutionally-protected groups who likely are 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 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.