Why are discrimination claims against employers at an all-time high?
It’s a combination of factors, the experts say.
The first lies in changing federal law. Two key measures:
- The ADA Amendment Act. This recent add-on to the Americans with Disabilities Act widened the field for disability lawsuits against employers, including suits by job applicants who alleged they were refused employment because of a disability.
- The Lilly Ledbetter Fair Pay Act. After the Supreme Court limited the look-back period for employees who wanted to sue for pay discrimination, Congress responded with the Ledbetter Act, essentially removing the statute of limitations on pay lawsuits. It’s likely that thousands of such suits made it to the courts — suits that would have been dismissed pre-Ledbetter.
Both those laws gave the EEOC and the Justice Department wider latitude in bringing discrimination charges against employers.
The other key factor: Amid layoffs, cutbacks and worries about retaining jobs, employees are more likely to sue. In particular, ex-employees, bitter about being let go, increasingly have turned to the courts for retribution.
By the numbers
Just how bad have things gotten?
Equal Employment Opportunity Commission statistics for FY 2010 show employers faced an all-time high in the number of charges — some 99,000 — and paid out more in damages — $319 million — than in any other year. And those figures come on the heels of consecutive record years in 2008 and 2009.
Some employment-law analysts are promoting the idea that we’ve hit the peak, since there will be a shift in control of the U.S. House of Representatives in January.
Alas, not true. Yes, there will be a shift, but the White House and executive-branch agencies like EEOC and the Justice Dept. don’t need Congressional approval to enforce existing laws. So we might see a slowdown in lawmaking, but a slowdown in enforcement just doesn’t appear to be in the cards.
What to do? Two key steps:
- Train managers and supervisors to follow the rules set down by the laws — especially when dealing with worker complaints. Most lawsuits stem from blunders by the boss or a failure address a complaint by an employee — who then takes the complaint to a federal agency or a courtroom.
- Train employees in their rights. You might think that by doing so, you’re training them to sue. That’s not usually the case. Employees who are educated in their rights often are the ones who are less likely to sue — if the education is provided by the employer. Plus, courts tend to side with employers that make rights training a priority — and can show they’ve been open and honest with workers.