Trend of Increased Volume of Employment Discrimination Claims Cited

The Equal Employment Opportunity Commission (“EEOC”) reported last week that in fiscal year 2010 it experienced a 7.2% increase in the volume of newly filed discrimination claims. Discrimination claims are ones in which employees claim that they have been treated unfairly because of their sex, race, ethnic origin, disability or some other “protected category”. Typically these claims are brought either shortly before or immediately after an employee is terminated. In most claims of this nature the employee asserts that the “reason” for termination was discriminatory, and the reason given by the employer for the termination was false. This surge in new discrimination claims is believed by many industry experts to be a result of the recent recession, and to signal that layoffs are still widespread.

This trend underscores the need for employer caution when terminating employees. Employer should follow a strict protocol for reviewing employees regularly so that any performance problems or inadequacies are well documented prior to any termination. Employers should also communicate directly with employees about performance issues, and carefully monitor ongoing performance problems. When terminating an employee for performance reasons or a downsizing, employers should anticipate that employees will claim discrimination, and carefully document all grounds or reasons for termination.

On the flip side of termination, employers should be mindful of their obligations under Federal and state law to avoid discriminating against applicants based on a “protected category”. Employers should pay especially close attention to applicants’ ages, and be careful to avoid discriminating against older workers. With the “boomer” generations’ postponement of retirement because of financial losses and the large number of workers struggling to regain employment after having been laid off, more and more older workers are attempting to reenter the workforce. Employers are well advised to carefully monitor their applicant pools and take a long look at their hiring decisions.

Lisa Chapman
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