Sunday, September 4, 2016
Sam Estreicher (NYU) has posted on SSRN his article Achieving Antidiscrimination Objectives through 'Safe Harbor' Rules. Kudos to Sam proposing something designed to create job opportunities for the heretofore nearly unemployable; I hope this helps move the discussion forward. Here's Sam's abstract:
This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes.
Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high employment risk. The safe harbor would be in the form of a regulation, promulgated after notice and opportunity for public comment, that individuals from these categories may be hired as probationary employees for a defined, say three-year, period, during which they may be discharged without cause or consequence for the employer. (Other provisions of the antidiscrimination laws would be unchanged). If such employees are retained beyond the probationary period, they would be treated the same as other employees in all respects, including the full force of the antidiscrimination laws.
The benefit of the safe-harbor approach is that it directly addresses the concerns that motivate the employer’s non-hiring decision. The employer is given a relatively cost-free opportunity to evaluate whether engaging the employee from the high-risk category will in fact entail the predicted risks or whether an employee’s actual performance will belie the predicted concern.
This is a preliminary look at the potential benefits of a “safe harbor” approach to antidiscrimination goals. Creation of carefully cabined regulatory safe harbors for hiring employees from high-risk categories has the potential to spur improved utilization of such employees with limited harm to the moral force of the antidiscrimination regime.