Mike Kueber's Blog

September 29, 2011

Job discrimination against the unemployed

Filed under: Economics,Issues,Politics — Mike Kueber @ 12:56 pm
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President Obama is taking a lot of flak from conservatives for generating too many regulations and for protecting plaintiffs’ lawyers who file frivolous lawsuits.  Both of these things, according to the conservatives, are a serious drag on the economy.

Unfortunately, President Obama appears to have concluded that he will not be able to work with conservatives until the 2012 election adjusts their attitude.  So instead of trying to find common ground, he is making proposals that have no chance of success, but will help rally his base.  An example of this is his recent proposal to make it illegal for employers to discriminate against the unemployed.

According to an article in the NY Times, Obama’s proposal would make it an unlawful employment practice for a business to consider an applicant’s current employment status when deciding who to hire.  The proposed law would authorize unsuccessful job applicants to sue “just like when an employer discriminates on the basis of a person’s race, color, religion, sex or national origin.”

This dispute reminds me of my days as an auto-insurance lawyer, when we had to fight regulators who didn’t want us to make underwriting decisions based on an applicant’s credit score.  The regulators initially argued that there was no statistical connection between a low credit score and the likelihood of getting into an car accident, but eventually we were able to decisively win that argument.  Facts are stubborn things.  Then the regulators shifted to a fairness argument – i.e., people with bad credit scores were already punished enough; extending the punishment to their insurance rates was not fair.

Proponents of Obama’s proposal argue that that people who are unemployed through no fault of their own are just as likely to be a good employee as someone continually employed.  Furthermore, the unemployed have already been punished enough; making it harder to get a job just isn’t fair.

Conservatives respond that the proposal would establish the unemployed as a new “protected class” and would encourage frivolous lawsuits from unemployed people whose job application is rejected.

President Obama is correct in worrying about the growing number of long-term unemployed people, who are reaching record levels.  According to the Times article, “Skills often atrophy when a person is out of work, and White House officials said that discrimination could worsen the problem, creating a class of people who could be left behind as the economy recovers.”

But the problem can’t be solved by requiring businesses to hire less qualified persons just because they are unemployed.  The problem needs to be
solved by an economy that has more jobs for everyone.

December 25, 2010

Malpractice in a Texas emergency room

A recent article in the Texas Tribune reviewed whether emergency-medicine doctors should have the same standard of negligence as that of other doctors – i.e., ordinary negligence.    Since its tort reform in 2003, Texas law has required more than simple negligence; instead it requires “willful & wanton” negligence, which is essentially the same as gross negligence.  Although the Tribune did not overtly take a position on the fair standard for emergency-room negligence, there is no question that they devoted a lot more energy to showing that the “willful & wanton” standard causes grave injustices and gave minimal effort to showing the benefits of this variation of tort reform.

Non-lawyers may not have a good understanding of the practical difference between simple negligence and gross negligence, but suffice it to say that in car-accident claims, gross negligence is extremely difficult to prove unless the other driver was drunk.  Similarly, unless an emergency-room doctor acted like a drunk, an ER patient in Texas is unlikely to have a viable action for negligence. 

As support for this conclusion, the Tribune article noted that, since 2003, there have been only 150 lawsuits a year in Texas against emergency-room doctors, and considering the size of Texas, that is a surprisingly small number.

Coincidentally, I have a fourth-year medical-student son who is planning to specialize in emergency medicine, and for the past few weeks, he has been interviewing around the country for an emergency-medicine residency.  He reports that when the interviewers learn he is from Texas, they often acknowledge that Texas is a great place to practice not only because of its broad tort reform, but also because of its enlightened standard of “willful & wanton” for ER doctors.  Clearly, the tort reform is achieving one of its principal objectives – i.e., making Texas a desirable place to practice – but at what cost?

My son, of course, agrees completely with the “willful & wanton” standard.  He believes that ER doctors should be treated differently because they are often in situations where they have only sketchy information and no time for reflection.  In 20-20 hindsight, their decisions are often and easily second-guessed.  He says that happens all the time by the doctors who take over follow-up care of ER patients, and he can easily imagine how second-guessing from a plaintiff’s lawyer and a sympathetic jury will result in injustice against him.

I tried to explain to my son how the standard of “ordinary negligence” takes into consideration the context of any actions that occur, but he is reluctant to placed at the mercy of a sympathetic jury.  I can appreciate that – a jury will almost always err in favor of the injured patient instead of the affluent ER doctor and medical system.

Perhaps there is a middle ground that would provide a better balance between justice to the patient and justice to the doctor and medical system.  I would like to see some thought to affording economic damages (medical costs, lost wages, etc.) based on simple negligence, while requiring the higher standard for obtaining noneconomic damages (pain & suffering, legal fees).