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Because They Can

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As if it were not hard enough to find a job in today’s economy, in recent months there have been reports that many hirers are actively discriminating against the unemployed, with some job advertisements even going so far as to specify that unemployed persons need not apply. In response, the Obama administration is proposing a new jobs bill (PDF) that would expand the scope of the 1964 Civil Rights Act to make it illegal to discriminate based on employment status. The provision has raised one or two eyebrows, particularly from those who believe employers are already hampered by legislative red tape and who have pre-existing bees in their bonnets about “frivolous” lawsuits.

It’s easy enough to understand why discriminatory job ads like these have been appearing. With dozens or hundreds of people applying to every vacancy, human resources professionals are overwhelmed, and are looking for efficient ways to narrow down the pool of potential hirees without the time-consuming process of combing through each individual application. It doesn’t help that human resources departments are themselves feeling the squeeze: when the redoubtable HR director at my last job retired, the agency took the opportunity to downsize her department by 75%. Active discrimination is an easy and attractive option, which partly explains why, depending on the state you’re hiring in, there are anywhere from a handful to a few dozen legally protected categories of job applicant. (In California, for example, age is one of them, so the idiot who placed the ad I saw the other day for a female receptionist in her twenties would be well advised to take it down sharpish.) But even sweeping employment legislation still leaves plenty of scope for discrimination. Faced with an ever-growing list of protected classes, many recruiters still don’t get the message, and continue to look for ways in which they’re still allowed to discriminate rather than consider each applicant on his or her own merits.

Stipulating active employment as a qualifying criterion does make some sense. In the current climate, someone who already has a job but is looking for a new one can be perceived as demonstrating ambition, imagination, and a willingness to take risks, all qualities that are attractive to employers. On the other hand, it disregards the global picture. Whether they do so openly or not, companies who consider hiring only the already employed are helping neither the economy nor themselves, since they are not doing anything to reduce the unemployment statistics and are just setting themselves up to be inundated yet again the next time they advertise a vacancy; not to mention the negative impact on other companies whose employees they are enticing away.

There are other, more subtle ways in which hirers discriminate. Some of them are legitimate: It’s perfectly reasonable, for example, if a law firm looking for a new partner states in their ad that applicants ought to have trial experience. Some are more dubious. If a recruiter calls you and you don’t answer the phone, that in itself can be enough to disqualify you from consideration, even if you immediately call back. You can even find yourself out of the running for an unskilled, entry-level position in retail or fast food on the grounds that you lack experience in those industries. It’s impossible to quantify how many good people employers miss out on by pursuing arbitrary hiring policies, but the fact that there are are millions of highly-skilled, highly-qualified folks still languishing on the unemployment line suggests that it’s a lot.

The discrimination provision in the jobs bill has been broadly welcomed, although Obama’s customary critics have had little to say on the subject. Opposition to it, and to anti-discrimination legislation in general, has been from two camps. There are, as mentioned, those who are concerned about frivolous torts. These lawsuits are typically portrayed as an enormous drain on the economy, although the actual numbers don’t support their claim and they rarely bother to provide any evidence that the suits they complain about actually are frivolous other than that they say so.

Then there are libertarians like Rand Paul, who take the view that anti-discrimination legislation in general is a bad idea because it infringes on the right of business owners to run their companies as they choose. When challenged, this school of thought often argues that left to its own devices, the market will eventually eliminate discrimination as customers avoid businesses with discriminatory practices. But the law is largely reactive, and as I remarked earlier, the sheer number of protected classes and amount of legislation suggests that the opposite is true; that the market gives businesses in general and recruiters in particular strong incentives to discriminate.

So while sympathizing with already overburdened HR professionals for whom it will make their jobs that bit more difficult, I welcome the proposed legislation. And if it doesn’t pass? Well, there’s always the maxim of the market, which says that if an employer chooses not to hire you because of some arbitrary reason such as your inconsiderate failure to have a paycheck, they probably weren’t worth working for anyway. But then there’s that other economic maxim: beggars can’t be choosers. Better, perhaps, to work for an asshole: then at least you improve your chances of landing a slightly better job with a slightly lesser asshole.

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  • Glenn Contrarian

    Doc –

    Great article – and your line that “beggars can’t be choosers” echoes what I said in my earlier article wherein I pointed out that a libertarian economy can work, but requires a cheap and compliant labor force – an “underclass”, as Dave Nalle called it.

    And back come the bad old days of the Industrial Revolution with a great yawning divide of the haves and have-nots. But hey – that’s pure capitalist freedom, is it not?

  • jamminsue

    Oh, yes! I recently wrote a paper explaining that the people of the US remain docile ONLY because they think they will be the next winner in the ‘next millionare lottery’ or ‘captain of industry’.

  • Jordan Richardson

    Great article and good to see you writing again, but the links were a little wonky for me. Anyone else have trouble?

  • The links were all messed up but are now fixed.

    Thanks for the heads up, Jordan.

  • Rather minor point, Dreadful, for I don’t disagree much with the thrust of your argument (except perhaps the beggars’ part, since I have no one to account to other than myself). It’s got to do with structure.

    Your main dichotomy concerns those who are being discriminated against (on a/c of being unemployed) and those who are not.

    Then you pose a question: what if the anti-discrimination legislation that’s being proposed doesn’t pass?

    Well, one would expect that the next thing you’d do would be to provide some remedies to those who are being discriminated against and there being no protection under the law. But you don’t anything of the kind, so, I don’t know how best to put it, you’re either shifting the goal posts or simply changing the topic without there being an adequate transition in the body of the text.

    Indeed, what you’re introducing is another interesting dichotomy between complete and only partial a….s, couched, as you say, in terms of economic realities.

    But in reality, neither option you introduce is a remedy (especially to the unemployed). Both serve in fact as forms of consolation: the first, to the discriminated-against group; the second to those who are not.

    Do you see what I’m getting at?

  • Jordan, Chris: That’s odd, the links worked for me yesterday.

    Roger: Perhaps this is something we can address in the comments space.

  • Stipulating active employment as a qualifying criterion is discriminatory under a lot of US Code, just as age discrimination, which will be proved, in court, when it gets there.