Job-Bias Claims Soar to Record High in 2008, EEOC Says

Employment discrimination claims soared 15 percent to a record high in the fiscal year that ended September 30 and will probably surge again this year, propelled by the recession, said a spokesman for Equal Employment Opportunity Commission.

“Historically, whenever there’s been a severe economic downturn, charges have usually spiked the next year,” spokesman David Grinberg said in an interview.

The most dramatic surges in employee claims occurred for those alleging age discrimination and retaliation for complaints of bias. Age discrimination claims rose 29 percent to 24,582, and retaliation claims increased 23 percent to 32,690, according to EEOC data released Wednesday, March 11.

Overall employee claims with the EEOC jumped to 95,402, the most since the agency opened its doors in 1965. Retaliation claims were second in number only to those alleging race discrimination.

“Someone who has lost his job is in a very tough situation and may be looking at a number of avenues where he can replace revenue,” said Gerald Hathaway, an employment lawyer with Littler Mendelson in New York. “But true victims of discrimination are rare. Most commonly, someone files a claim thinking he’s a victim of discrimination, but is not.”

Employers announced 1.22 million job cuts in calendar year 2008, the most since 2003, according to consulting firm Challenger, Gray & Christmas. The numbers skyrocketed in November and December to a total of 348,019, accounting for 28 percent of the year’s cuts.

The reductions continued to soar in January and February, rising to 428,099, according to the firm. If cuts were to continue at that pace throughout the year, the 2009 figure would be by far the highest annual total in the last 20 years.

Employees who want to file a claim have six months since the last action of alleged discrimination to do so, Grinberg said.

A charging party does not have to wait and see how the EEOC resolves his/her case before filing a private suit, according to Grinberg.

A charging party can ask for a Right to Sue Notice at any point in the process, and EEOC is required to provide one no later than 180 days after the request is made. according to Grinberg. An individual may file a private lawsuit even if the EEOC has not resolved their case.

Many employees who may be genuine victims of discrimination may not file claims out of fear of losing their jobs, especially during a recession, Grinberg said.

“It is clear that employment discrimination remains a persistent problem,” EEOC acting Chairman Stuart Ishimaru said in a statement.

Hathaway disagreed, saying that the claims surge is a reflection of both the recession and poor management communication.

“Managers tend to manage around troubled employees rather than confronting the problem directly,” said Hathaway, who advises large and midsize companies on layoffs. “These employees start to feel isolated and wonder if they’re being discriminated against.”

If employees then file claims, managers sometimes “go ballistic,” which explains the soaring number of retaliation complaints, he said.

“The record is full of cases where employees lose on their discrimination allegation but win on complaints of retaliation,” Hathaway said.

The striking increase in age discrimination claims reflects both the aging of the baby boomer workforce and the frequent correlation between employees’ age and pay, said Steven Weatherhead, an employment lawyer with Bello Black & Welsh in Boston.

“Older employees tend to earn more,” Weatherhead said. “And higher salaries are one of a number of factors that managers consider when trying to make the right business decisions.”
 
To view the EEOC announcement, go to http://www.eeoc.gov/press/3-11-09.html