Retaliation claims surpassed race as the most frequently filed charge.
By Doug Sherwin / The Daily Transcript / January 19, 2011
Workplace discrimination claims rose to an all-time high last year, but the down economy isn’t the only culprit to blame.
A more legally savvy employee and a fear of job security are other factors, according to local labor & employment attorneys.
Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) reported receiving nearly 100,000 workplace discrimination complaints during the fiscal year 2010, which ended Sept. 30.
Additionally, for the first time ever last year, retaliation claims under all statutes surpassed race as the most frequently filed charge.
“The down economy contributes to it, but we’re also experiencing a huge reaction to the down economy in a way we haven’t experienced before,” said Janice Brown, founding partner of the employment law firm Brown Law Group. “This is historic.
“The economy has shifted significantly with several sectors being eliminated. People are responding to the shift with fear – both employers and employees.”
All major categories of claims increased in 2010, according to the EEOC, and the federal agency received more than 200 charges under the Genetic Information Nondiscrimination Act (GINA) in its first year of enforcement.
“American employees are much more aware of their employment rights,” said Jeremy Roth, managing shareholder of the San Diego office of the employment firm Littler Mendelson. “We used to still say how keenly aware of employment rights California employees are. That’s a function of our fairly liberal employment rules and having hundreds of thousands of attorneys.”
Now the rest of the nation’s workers are becoming well versed in employment law, too, helped by the media attention given to the very first piece of legislation Barack Obama signed as president – the employment-related Lily Ledbetter Fair Pay Act.
“The cases are getting a lot of publicity, and the verdicts are quite large,” as well, Roth said.
Roth also said the stigma of filing an employment claim has been largely removed.
Brown said the poor economy has played its part, especially as it’s forced companies to downsize with too much haste.
“They may be reacting to the bottom line so quickly that all the people affected (in a workforce reduction) are in a protected class,” she said.
In other to protect themselves, employers need to regularly and accurately document the performance of their workforce.
“Companies leave themselves vulnerable,” she said. “An employer can’t refute a claim because they don’t have documents. When money is scarce, people don’t take preventative measures.
“People cut back on training of employees; they don’t update employee handbooks; and they don’t give honest employee evaluations.”
Another factor contributing to the increase in claims is the high number of former employees who are still unemployed.
Workers who get hired somewhere else don’t tend to file claims against their former employer.
Littler’s Roth said that heading off potential problems before they start is the best protective measure for employers.
“I think employers need to make sure that in the tough economic times the H.R. (human resources) function doesn’t get eroded, and they stay on top of how decisions are made in the workplace,” he said. “Doing not just what is legally required, but also best practices helps. An ounce of prevention is worth a pound of cure.”