Here's a candidate for the worst provision in the President's American Jobs Act-brace yourself, because needless to say it's a tough competition: The provision outlawing discrimination against the unemployed when hiring.

The basic idea is that employers shouldn't be able to hold it against an applicant if she has been out of work. Ok, that may sound fair enough–someone has had hard luck, but that shouldn't prevent her from gainful employment in perpetuity.

But what does this mean in practice? It means that employers have another reason to fear creating a new job and opening it up to applicants, since if they have to turn down someone currently unemployed, they face being slapped with a discrimination lawsuit.

Lawyers undoubtedly love this new provision: A whole new class of potential clients who have time of their hands to file frivolous lawsuits! Yet this is bad news for the economy, for businesses, and all the currently unemployed who sincerely want to gainful employment, rather than a cause for litigation.

Making it illegal for someone to consider employment status is almost as nonsensical as outlawing the consideration of job skills. The term "discrimination" is loaded, but employers have to pick and choice between applicants based on a variety of criteria that they think relates to the value they will bring to the company. The selection process is by its very nature "discriminating."

Yes, it's hard for the long-term unemployed who have a tough time keeping skills current and keeping up contacts while out of a job. Yes, employers may make a mistake in correlating unemployment with a lack of current skills. Presumably, if employers really have a policy of discriminating against the unemployed-giving jobs to less skilled workers who happen to have a steady paycheck instead of hiring more highly skilled unemployed workers-they will pay a price in the marketplace for this inefficiency.

The real solution for the unemployed is to have more jobs available, so that all applicants have a better chance of finding a position. That's why policymakers should be focused on ways to bring down barriers to employment creation-not to create new ones.