Discrimination Claims Rise as State, National Economies Sour

As layoffs mounted during the recession and employers shed workers to keep costs down, the number of discrimination claims also went up nationally and in California. For a 13-year period, the Equal Employment Opportunity Commission showed the highest number of discrimination filings during the 2008 and 2009 fiscal years – the time period when the bottom fell out of the U.S. economy and businesses across all industries resorted to layoffs. Of particular note was the number of age discrimination filings. In the 2007 fiscal year there were only 19,000 cases filed by the federal agency but that number leapt to 24,500 in fiscal 2008 and dropped slightly to 22,700 in fiscal 2009. In California, the Department of Fair Employment and Housing also had a similar rise in the number of age and disability claims filed against employers in 2008. While not all the filings may be valid they do say something about how workers responded to losing their jobs. That the ranks of mid-level management shrunk as a result of cuts could help explain the increase in age discrimination filings, especially if those workers were confused over why they were let go. “When you have mass layoffs they might not know all the reasons and when they are unemployed they bring claims,” said Kristine Kwong, an attorney with Hinshaw & Culbertson in Los Angeles and a board member of the Los Angeles chapter of the National Human Resources Association. While the EEOC has historically seen a rise in filings during economic downturns it is still only an educated guess as to why the numbers are up. In fiscal 2008 there were 95,400 total filings and 93,200 in fiscal 2009. In comparison, the commission had a total of 82,800 in fiscal 2007. “Anecdotally, overall there does seem to be more discrimination at those times,” said EEOC spokesman James Ryan. In a bad economy with displaced workers not being able to find another job in a reasonable period of time they may be more susceptible to thinking they were wronged in some way. How an employer handles layoffs can diminish that susceptibility. If the mystery for the “why” is not taken away an employee will think the worst possible motive for their termination and that is when they lawyers enter the picture. “When people are laid off they are going to be looking for ‘Why was it me and not so and so next to me?’” said Susan Strauss, a workplace consultant based in Minnesota. Straus has heard from human resources director and managers that they have employees they want to let go but won’t because of fears of being sued. To protect themselves, employers need to document as much as possible the process of letting employees go, treat them respectfully and be upfront for the reasons why. When newer employees are let go it often falls to senior workers to pick up that load and that can create unanticipated hardships. Suddenly these employees are accountable for work that other people used to do and that may lead to performance issues that can result in disciplinary action and finally termination. If the layoffs are out of necessity, the HR director and the company’s chief executive should come to a consensus on who is to be let go and document it in objective paperwork and analysis, Kwong said. Even with that process there may be a significant number of employees of certain age or gender but at least the company can back up its decision. “If people see a pattern, then you must be able to explain a pattern or if you’re concerned you need to check it again,” Kwong said. When the fiscal 2010 stats are available from the EEOC in a year it will give a better picture of the connection between the recession and the number of discrimination filings, Ryan said.