Bias Claims on the Rise

As employee rights expand and the economy contracts, it is not surprising that employment claims are on the rise.  With respect to discrimination claims, the Equal Employment Opportunity Commission had an unprecedented surge in discrimination claims in 2008, with a 15% increase since 2007.  The greatest increases were in retaliation and age charges.

The combination of more terminations and less jobs can be expected to lead to an increase in discrimination and other employment-related claims.  In the context of a group termination, it is more likely someone in the group may pursue a complaint.  Moreover, if a termination is for economic, rather than performance, reasons, an employee may feel s/he was chosen or treated unfairly.  Employees who may not have sued if they were able to move on and find other employment now may be more likely to do so if they cannot find another job.

Former EEOC General Counsel Ronald Cooper commented on the uptick in claims at an employment conference sponsored by the American Law Institute - American Bar Association in Washington, DC in December, 2008.  Mr. Cooper noted that the recent amendments to the Americans with Disabilities Act will make it easier for employees to prove that they are disabled because individuals who use "mitigating measures" or have episodic conditions will not be excluded.  In addition, more employees will be entitled to reasonable accommodations, so claims for failure to accommodate may increase as well. 

However, "undue hardship" on the employer may be easier to prove in this economic climate. Undue hardship may relieve an employer from the obligation to accommodate and takes into consideration the size and financial condition of the business and expense of the accommodation.

Mr. Cooper also described current conditions as a "perfect storm" for age claims.   The workforce is older, and reductions in force may have a more severe impact on older employees who are more expensive.  In addition, age claims are easier to pursue than other types of discrimination complaints.  For most claims, an employee has to exhaust his or her administrative remedies by filing a charge with the EEOC first and then waiting for a right to sue letter.  Employees bringing a charge of age discrimination with the EEOC may file suit after 60 days without waiting for a right to sue letter.  In addition, the recent United States Supreme Court decision in Meacham v. Knolls Atomic Power Lab. puts the burden on an employer to show that a challenged employment decision that allegedly has a disparate impact on older workers was based on a reasonable factor other than age, essentially requiring employers to disprove age discrimination.

As workforces become more diverse, religious discrimination claims are increasing as well.  As with disabilities, employers have an obligation to reasonably accommodate bona fide religious beliefs, although the burden is not as high.  This obligation can include relaxing dress codes, changing schedules, and allowing prayer breaks.

What can employers do to protect themselves from discrimination claims?

1.  Take proactive steps:

       -    Implement equal employment opportunity policies that include a procedure for employees to request reasonable accommodations where required.

      -  Implement a harassment avoidance policy that includes a complaint procedure and prohibition on retaliation.

       -    Conduct harassment avoidance and diversity training for all managers and employees so that employees understand their right to be free from harassment and discrimination and their responsibility to refrain from prohibited conduct and to report claims internally. Properly conducted, training can significantly decrease the risk of agency claims and lawsuits by teaching employees to correct behavior and to report to the company first.   In fact, employers who have a harassment avoidance policy, which includes internal complaint procedures, and conduct training may have an affirmative defense to hostile work environment harassment claims if an employee fails to take advantage of the employer's safeguards.  For more information on employment training, click here:

     -  Make sure you post all postings required by federal and applicable state law.

2.  Make sure each adverse employment decision, including terminations and reductions in force, is supported by objective, non-discriminatory business reasons and documented.  For more information on RIF considerations, see my January 27th post on RIF plans.

3.   While a fence at the top of the hill is better than an ambulance at the bottom, obtaining a release of all claims from a departing employee can protect an employer from liability.  When offering severance, make sure it is conditioned on an effective release.  For more information on release of age claims, see my January 27 post on the Older Workers Benefit Protection Act.