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 like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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