II. THE PROPOSED PRIVATE CAUSE OF ACTION
A. Proposed Cause of Action for Hiring Discrimination Based on Employment Status
The Fair Employment Act of 2011 was one of the first pieces of legislation proposed in response to the trend of employers showing a preference for job candidates who are currently employed. The bill, sponsored by Rep. Henry Johnson, would amend Title VII of the Civil Rights Act of 1964 to forbid employers from discriminating based on employment status. The bill proposes that Title VII be amended to include the phrase “employment status.” Under the bill, “unemployment status” means “being unemployed, having actively looked for employment during the then most recent four-week period, and currently being available for employment.”
The 2011 American Jobs Act included a similar provision. The provision, titled “Prohibition of Discrimination in Employment on the Basis of an Individual's Status as Unemployed,” seeks to: (1) prohibit employers from disqualifying an applicant because of that person's status as unemployed; (2) prohibit employers and employment agencies from publishing or posting advertisements that indicate that an unemployment status disqualifies an applicant from consideration; and (3) eliminate the burdens imposed on commerce created by such practices. The provision explicitly states that employers are still permitted to consider employment history as a consideration in hiring. This statement in the Act underlines the problem that will occur in enforcing this measure: what standards will be used to determine when an employer has focused too heavily on an individual's status as unemployed? If a new cause of action is enacted, courts will likely use the framework for a cause of action under Title VII of the Civil Rights Act of 1964.
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F. Other Criticisms of a Private Cause of Action
Plaintiffs in employment discrimination cases lose at much higher rates than other plaintiffs. A statistical study confirmed that plaintiffs in employment discrimination cases “win a lower proportion of cases during pretrial and at trial. Then, more of their successful cases undergo appeal. On appeal, they have a harder time both in upholding their successes and in reversing adverse outcomes.” Between the years 1998 and 2006, Title VII cases made up nearly seventy percent of employment discrimination cases in U.S. District Courts. Plaintiffs in these cases had a success rate of 10.88%. Plaintiffs also have difficulty surviving on appeal--a favorable verdict for the plaintiff is likely to be reversed while an adverse outcome is unlikely to be reversed. It is clear that there is an anti-plaintiff sentiment among courts in employment discrimination cases. An employment discrimination plaintiff already has a significant burden to overcome in addition to this biased sentiment.
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