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Full Employment, for Lawyers


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The Obama administration has the worst employment record in modern history, but it is pressing forward boldly to create a raft of new jobs — for trial lawyers. To the existing menu of protected classes in job-discrimination cases — race, sex, physical handicap, etc. — President Obama proposes to add a new one protecting the unemployed.

Which is to say, being unemployed would put one in the same position as being black or being a woman when it comes to making claims of discrimination in hiring practices. This is a bad decision for a raft of reasons, but one that must be deeply appealing to the White House: Institutional racism is a thing of the past in these United States, but the extraordinarily profitable industry that grew up around discrimination claims funds an army of “community organizers,” diversity consultants, community-outreach officers, and similar sinecures. It is a large part of the political infrastructure of modern liberalism.

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But setting up the unemployed as a new protected category in employment cases creates some tricky problems. First and foremost, the fact of being unemployed — unlike the fact of being black or being a woman — in many cases will be legitimately linked to a candidate’s desirability in the labor marketplace. It is not that unemployed workers are more likely to be undesirable, but that undesirable workers are more likely to be unemployed. Workers suffering from long-term unemployment begin to lose skills, are less current on industry practices, and begin to dishabituate from the professional environment. Our sympathies are with them — and there are many more of them since Barack Obama became president — but our sympathies do not render such facts irrelevant in employers’ hiring decisions. A salesman who has been out of work for years may in fact be a less desirable candidate than one currently employed, for the specific reason of his unemployment, and an employer who takes that into consideration is not engaged in nefarious discrimination, but in rational evaluation of candidates. President Obama is at odds with reality on this issue, as he so often is.

It is not discrimination that has U.S. unemployment at persistently high rates. The reasons are many, and one of them is the fact that President Obama and congressional Democrats have seized a great many opportunities to make the nation’s economy worse, either out of economic ignorance or out of ideological narrowness, burdening it with debt, binding it with new regulations, and unsettling it with new complexity and heightened uncertainty about the future. That is Mr. Obama’s doing, and it is his problem. Creating a new category of discrimination claims will not produce a robust labor market.

What it will produce is a river of new regulations — the Equal Employment Opportunity Commission will be tasked with making sure that job advertisements and employment agencies cross t’s and dot i’s according to federal mandate — along with a flood of new lawsuits. That these lawsuits will enrich the trial bar, a reliable Democratic constituency and a rich source of campaign donations, surely is lost on nobody in the White House.

Some 14 million Americans are unemployed today, nearly half of them long-term unemployed, meaning they have been out of work for at least 27 weeks. Millions have been unemployed for more than a year, and the average spell of joblessness now runs uncomfortably close to a year — some 40 weeks. The president believes he can regulate some of that problem away with new discrimination claims. That is wishful thinking, a luxury that we can ill afford in the best of times. And these are not the best of times.



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