Dismal job market fuels job bias claims

In the worst job market since the Great Depression, a record number of fired workers are not going quietly.

The Equal Employment Opportunity Commission said Tuesday that it received more job discrimination complaints in the latest fiscal year than at any time in its 45-year history. In addition to getting almost 100,000 new complaints, the federal agency filed 250 lawsuits, settled another 285 suits, and resolved 104,999 private sector claims.

Those enforcement actions, mediations and other litigation cost employers a record $404 million in payments to workers filing claims.

The agency cited a number of factors for the jump in claims, including greater diversity in the work force. But the brutal job market and dismal economy have played a major role, according to attorneys representing workers filing discrimination claims.

"There's nothing that stimulates employment litigation like a bad economy," said Ron Cooper, a former general counsel of the EEOC who is now in private practice. "People who have lost their jobs are a whole lot more likely to think about bringing a lawsuit than people who continue to be employed."

The increase comes as the commission has added more workers to handle the surge in new claims and clear a big backlog of pending actions. EEOC chairwoman Jacqueline Berrien said the agency has spent the past two years boosting its staff, reversing deep cuts during the Bush administration.

"Discrimination continues to be a substantial problem for too many job seekers and workers," Berrien said. "We must continue to build our capacity to enforce the laws and ensure that workplaces are free of unlawful bias."

The higher number of claims also comes as the commission spreads the word about employment laws to those who may be the subject of discrimination. The EEOC said it provided educational training and staged public outreach events to 250,000 people in the latest fiscal year, which ended Sept. 30, 2011.

What is illegal?
Those sessions also helped workers sort out what types of layoffs may be illegal — a distinction that isn't always easy for a terminated worker to gauge.

"We get so many calls from people coming in saying that they had a personality dispute with the boss of some sort, or that they were loyal employees, " said Brent Pelton, a New York lawyer who specializes in employment law. "There's nothing we can do to help. Employees have to remember that they are employed at will and can be hired and fired at will so long as it's not based on race, gender, nationality, age or disability."

Pelton said the weak economy has also brought an increase in the number of fired workers owed back wages.

"We have a significant number of cases involving companies — construction, restaurants, retailers — where employees are just willfully not paid overtime," he said.

Discrimination claims rose in every category and, as in past years, claims based on race, sex and retaliation were most frequent. Race discrimination claims rose 7 percent, while retaliation claims jumped 8 percent.

Disability bias claims posted the biggest jump in the latest fiscal year — up 17 percent, the EEOC said. That spike came shortly after Congress changed the Americans with Disabilities Act in 2009, making it easier for people with treatable conditions like epilepsy, cancer or mental illness to claim they are disabled.

The unemployment rate for disabled workers is 14.3 percent, compared with 8.9 percent for persons with no disability, according to the most recent Labor Department figures.

"Layoffs often impact people with disabilities first and more severely than others," said Robin Shaffert, senior director of corporate social responsibility for the American Association of People with Disabilities. "People are losing their jobs and they believe it's for discriminatory reasons."