Republican Sen Michael Enzi Let Employers Discriminate

Isaiah J. Poole

Republican Sen. Michael Enzi says it should be perfectly legal for a business to engage in employment discrimination against a person who is unemployed.

Enzi, the Wyoming senator who is the ranking Republican on the Health, Education Labor and Pensions Committee, let loose this jaw-dropper during a hearing today on the plight of the long-term unemployed. During his opening statement, he singled out for attack the Fair Employment Opportunity Act, which would prohibit employers from refusing to consider unemployed applicants.

The practice was exposed this summer by the National Employment Law Project, and has persisted on major online job sites despite harsh criticism. The offenders have included advertisers on such major job websites as Monster.com and CareerBuilder.com.

But Enzi said discrimination against the unemployed simply isn’t a serious problem. He knows this because “I used to own a shoe store with my wife, and as a former employer I can tell you there are as many reasons to hire someone without a current job as there are to hire someone with one.” For example, he said, “the employee may be less costly to hire because there would be no question of matching previous salary and benefits.”

But not content to merely be on the side of a race to the bottom on salary and benefits, Enzi goes on suggest that banning discrimination against the unemployed would crush businesses in a tidal wave of litigation. “It would unleash costly legal liabilities and discourage new job creation,” he claimed, adding that a single help wanted ad “could be the basis of a lawsuit from as many unemployed individuals as could conceivably have seen the ad.”

If Congress dared step in and say to business that it can’t count a person’s employment status against them when considering them for a job opening, businesses might just not bother advertising job openings anymore, instead furtively passing along job opening tips to their friends and family instead. “The medicine would do more harm than the disease,” Enzi said.

You could imagine a young Enzi making the same arguments during debate of the 1964 Civil Rights Act, which outlawed discrimination on the basis of race, sex, color, creed and national origin. Businesses would drown in litigation because every African American, every woman or every naturalized citizen who believe they lost a job unfairly would be able to file a lawsuit to win fair consideration. How debilitating to business that would be.

Except that these anti-discrimination laws actually worked to the benefit of business as they moved the nation closer to embodying its principles of justice and equal opportunity. The fact that violators face high legal costs and ultimately punishment for violating the law is a consequence worth having.

Donna Stebbin, of Phoenix, Ariz., is 58 years old, currently unemployed, and is still trying to find work. She told the committee that she has applied for more than 200 jobs, but has yet to be hired. Further, instead of being invited to one-on-one interviews in which she has an opportunity to discuss her job qualifications, she said she most often finds herself in group interviews. In these settings, she said, she is asked few questions while recruiters focus on younger applicants. When recruiters for a retailer did ask her questions, they were largely about why she had been unemployed for so long and why she would want a job at a retail outlet with so many younger customers.

Christine Owens, executive director of the National Employment Law Project, in her testimony before the committee, said, “While discrimination against the unemployed is sometimes overtly reflected in ads, at NELP we also hear regularly from unemployed workers—mostly older workers—who despite years in the labor force and significant directly relevant experience are nevertheless told they will not be referred or considered for employment, once recruiters or potential employers learn they are not currently working.”

While there aren’t scientific studies on how widespread this discrimination is, she said, “the openness of the exclusionary ads noted above and the experiences jobless workers shared with NELP suggest the practice may be fairly common. That suspicion is borne out by comments of human resource consultants and recruiters willing to go on record about the practice.”

There are nearly 6 million long-term unemployed people like Stebbin, some of whom were in Washington this week for the Take Back the Capitol series of actions. And these unemployed people keep getting the same answers from conservatives such as Enzi: We don’t think the federal government should be telling private businesses what to do, even when what they do harms the interests of the country and its citizens. If they want to discriminate, let them.

Enzi’s most formidable straw man is that employers should be free to choose the person whose skills are most up to date. Of course they should. But that’s clearly not happening in the cases where employers are telling recruiters and applicants that they don’t want people who are currently unemployed or who have been out of a job longer than three months. Giving employers the space to choose the most qualified employee for a position does not require tolerating the morally wrong as well as economically destructive prejudice against unemployed people.

But when it comes to the chronically unemployed, there is a category of morality that conservatives appear totally unwilling to legislate.

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