You’ve probably heard this expression before. It’s from Charles Dickens’ Oliver Twist, and it is a comment on the doctrine of coverture, the now defunct legal fiction that husband and wife were one person, and that person was the husband. Under this doctrine, a married woman was presumed to be acting at all times under the direction of her husband. When told that “the law supposes that your wife acts under your direction,” Bumble, the Dickens character, answered that “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”
That expression often comes to mind when I see the absurd results that the law sometimes produces. More often than not, the law in question is the product of misinformed judicial decisions that interpret the law.
Case in point: 11 U.S.C. § 525(b) of the Bankruptcy Code provides that “No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt . . ..”
Let’s convert this to (almost) plain English: No employer may “discriminate with respect to employment” against anybody who has declared bankruptcy. Seems pretty simple, doesn’t it? Important, too, considering the current rates of unemployment and that in the last 12 months alone nearly 1.5 million individuals declared bankruptcy.
Many prospective employers in fact do run credit checks on job applicants. It’s legal in most states. So what happens when the credit check shows a bankruptcy in the applicant’s past? If the employer declines to make the job offer (or as in many cases, withdraws the offer already made) because of the bankruptcy, hasn’t the employer violated 11 U.S.C. § 525(b) of the Bankruptcy Code? Isn’t that discrimination “with respect to employment.” You would think so.
In fact, you would think it a no brainer. You would be wrong, however, if you lived in that part of the country comprising the Third, Fourth and Eleventh Circuits of the Federal Courts. If you don’t know what circuit you are in, here’s a map. This doesn’t mean that you are protected if you live somewhere else, it only means that the Circuit Court covering your state has not decided the question. (The Circuit Courts are the courts of appeals for the Federal District Courts, and they establish legal precedent until an issue is decided by the Supreme Court. It is not uncommon for Circuit Courts to decide identical issues differently, meaning that Federal Law is not the same across the country until the Supreme decides the issue. Crazy, I know.) The fact of the matter is that every court decision that I have seen on the issue has reached the same result. And what they have decided is that “discrimination with respect to employment” doesn’t mean discrimination in the hiring process.
Can this really be what Congress intended when it passed this law? After all, discrimination is discrimination. If it is illegal to fire an employee who declares bankruptcy, and everyone agrees that it is, why should it be legal to refuse to hire somebody for the same reason? The idea is that nobody should be prejudiced with respect to employment because he or she has declared bankruptcy. Hiring, firing, or anything in between.
The reason the Courts give for this perverse result is 11 U.S.C. § 525(a), which prohibits discrimination by government employers. That section includes the phrase “deny employment to” in addition to the “may terminate the employment of, or discriminate with respect to” language of 11 U.S.C. § 525(b). Thus, say the Courts, if Congress used different language, it must have meant different things. If it expressly prohibited the denial of employment in 11 U.S.C. § 525(a), and not in 11 U.S.C. § 525(b), it could only mean that it did not intend 11 U.S.C. § 525(b) to prohibit discrimination in hiring.
There is a certain logic to this, just as there was a certain logic to the doctrine of coverture: if a husband and wife are one person, then only one person can be responsible for the actions of them. Or something like that. Experience, however, tells us otherwise, and the reasoning of both accounts is faulty. In the case of bankruptcy discrimination, the result is wrong because the proposition is wrong: Congress, like anybody else, often uses different words to mean the same thing. There are dozens of federal laws that prohibit discrimination in employment, and Congress has never standardized the language among the statutes. In fact, 11 U.S.C. § 525(a) and 11 U.S.C. § 525(b) were enacted at different times and they contain other, unimportant, differences in their language. The first and foremost rule of interpretation is to give words their plain, ordinary meaning whenever possible, and discrimination with respect to employment is a very broad, all encompassing proscription against discrimination and that is how it should be interpreted.
Unfortunately, the Courts in their wisdom (or more likely, their desire to reduce the number of lawsuits filed) see things differently. Eventually the issue will be decided either by the Supreme Court or by Congress amending 11 U.S.C. § 525(b). Until then, the law is an ass.