ILNews

Discrimination cases rising

Rebecca Berfanger
September 29, 2010
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As people lose their jobs in a rough economy, it’s obvious that unemployment claims go up – and stay up – as it is more difficult to find new work.

In this particular economic environment, employment law attorneys in Indiana who represent employers of all sizes both here and around the country have also observed an uptick in the number of claims brought to the Equal Employment Opportunity Commission and at similar agencies at the state and local levels, such as the Indiana Civil Rights Commission, the Metropolitan Human Relations Commission in Fort Wayne, the Office of Equal Opportunity in Indianapolis, and the Human Relations Commission in Evansville.

These attorneys advise their clients about this possibility as early as when the clients start making plans for a reduction in force. Among that advice is to update all job descriptions, and to have a clear and concise explanation about how they determined who to let go. This will help if the issue arises at the administrative level or in court because the employer can better explain the process and the decision to anyone who asks, including the employee, an administrative agency, or a judge, they said.

Kathleen Anderson Anderson

“I think when people have been laid off, they look at what their options are, particularly when they have trouble finding new employment,” which has been the case in the last few years, said Kathleen Anderson, an attorney at the Fort Wayne office of Barnes & Thornburg who represents employers on a number of employment law matters.

“They consider filing unemployment and will possibly consider filing administrative charges at the local, state, or federal agency level. I’m seeing a greater number of charges, but a greater number are lacking any basis.”

Anderson said she thinks this is the case because even though there are more claims being filed at the agency level, there

doesn’t seem to be a larger number being approved. There also doesn’t appear to be a larger number proceeding to trial if the agency determines there isn’t enough reason to find the employer had discriminated against the former employee, or even the person who was an applicant for a job who wasn’t ultimately hired.

Another employment law attorney who represents businesses, Tami Earnhart at Ice Miller in Indianapolis, said she has also noticed the uptick in claims.

Earnhart Earnhart

“There are some cases that are questionable – as in the past – and there are some cases that have more merit than others, but that’s always been the case,” she said.

Earnhart said more people may be making claims because of an increased awareness of the option, such as media reports about high-profile discrimination cases and class-action lawsuits that tend to get more attention compared with cases filed by individuals.

In order to bring a federal discrimination claim, the person will first need to file a claim before the EEOC, the Indiana Civil Rights Commission, or a local fair employment practices agency.

If the EEOC finds there is enough information to support the claim based on the information presented, the EEOC will ask if the parties would agree to a mediation. If there is no mediation or if an agreement isn’t reached at mediation, the charge will be investigated. If the employer doesn’t cooperate, the employer may be subpoenaed. If the investigation yields enough information that the EEOC thinks the claimant has a valid claim, a member of the EEOC’s legal staff will decide whether or not to file a lawsuit. Some cases are referred to the Department of Justice.

Chuck Baldwin Baldwin

If the agency ultimately decides there isn’t enough information to support the claim, the claimant will receive a one-page notice of right to sue and dismissal. The amount of time a former employee has to file suit on her own following the EEOC’s decision of how to proceed on the claim depends on the type of claim.

Remedies also vary but can include notice from the EEOC to stop discriminatory practices; job placement, back pay, and/or benefits the claimant would have received if she had not been discriminated against; and attorney’s fees, expert witness fees, and court costs.

But before a former employee gets to the point of filing a claim, Anderson said employers have been proactive when it comes to their reduction-of-force plans to help the employees understand why they are being let go in the first place.

“Typically, companies will try to keep the higher-level performers, people with skills the company needs, and people who are adaptable, so those folks are clear choices for retention, especially in the first few rounds of reducing a work force,” she said.

But when companies need to make deeper cuts, those are more difficult to make as they tend to affect higher-level employees and some of the better performers, “so it’s difficult for them to understand why they were affected by reduction. It’s also difficult for them to understand the decision is not personal.”

Chuck Baldwin, managing shareholder for the Indianapolis office of Ogletree Deakins Nash Smoak & Stewart, agreed this is all the more reason to make the process as fair and objective as possible.

Of the types of cases employment law attorneys are seeing, Baldwin and Anderson said they’re seeing an increase in the number of retaliation, wage an hour, and Americans with Disabilities Act cases.

economyBecause of recent changes to ADA, Baldwin said employees have more they can claim under the act. The new legislation includes not only people with physical or mental impairments, but also further considers how accessible employers are to their employees when it comes to reasonably accommodating their needs in the workplace.

Anderson gave an example of a newer type of ADA case in which an individual was hired and then had trouble doing a particular job.

“The case will come down to what the particular disability or medical condition is and – regardless of the reasonable accommodations that could have been made – if the job could have been done,” she said.

The agency or judge will then “focus on the alleged impairments, what the job was, and how the company could or could not work around it. Some impairments employers cannot work around.”

For instance, she said, if someone claimed to have a back issue and couldn’t lift more than 5 pounds as a result, but the job specifically required the person to lift 5 pounds or more, the person making the claim could have a more difficult case of proving an ADA violation. But if the job requires that particular skill only on a fairly infrequent basis, such as once a month, as opposed to multiple times in a week or in a day, there is a much greater chance the employee could make his case that the company could have assigned that particular task to someone else in order to accommodate the employee who can’t physically lift the required amount.

This is another reason, Baldwin said, that he’s been advising clients to make sure all of their job descriptions are up-to-date, so if someone does make a claim regarding the ADA, the employer will know more quickly if they could or couldn’t accommodate someone – and if they could, then they could do what’s right for the employee.

The attorneys also noted they’ve noticed an increase in the number of age-discrimination claims, particularly among baby boomers who have been losing their jobs.

Earnhart added she expects there will continue to be a number of claims based on gender, race, national origin, and religion.

While it is more difficult to find a new job in this economy, the attorneys also reported seeing some positive signs the economy is starting to turn around.

Anderson said she has had fewer discussions with clients regarding plans for reductions of force. While the companies aren’t necessarily hiring, she said, they are looking ahead to start adding people when they can, while also determining how to more effectively use their current workforces.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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