ILNews

Discrimination cases rising

Rebecca Berfanger
September 29, 2010
Back to TopE-mailPrint

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.•

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

ADVERTISEMENT