The Equal Employment Opportunity Commission (EEOC) recently released its statistics for fiscal year 2008 which ended September 30, 2008. The number of cases filed in every category increased, totaling a record 95,402 claims filed, a 15% increase.


Age discrimination saw the biggest increase, + 29% and retaliation claims increased by 23%. In cases filed, race discrimination maintained its lead, followed by retaliation, sex, and age.


As the unemployment rate soars, so will the discrimination cases. The unemployment rate in LaPorte County, Indiana increased from 5.9% in January 2008 to 11.1% in January 2009. According to ELT-Inc., every 1.5% increase in the unemployment rate results in a 21% increase in case filings. That, paired with President Obama’s promise of stricter enforcement of discrimination laws is cause for alarm.


As companies restructure and eliminate jobs, statistics reveal a disproportionate number of older workers being “let go.” Businesses may believe reducing an older worker with higher salary will result in greater cost savings. Perhaps the perception that younger workers have greater technical skills and flexibility compound the result.


The Supreme Court decision in Meacham v Knolls Atomic Power Laboratory is significant. It overturned the ruling which said employees had the burden of disproving an employer’s defense of reasonableness. In the case, Knolls had its managers score their subordinates on performance, flexibility, and critical skills; these scores, along with points for years of service, were used to determine who was laid off. As a result 30 of the 31 employees let go were at least 40 years old. Disparate impact is obvious.


Disparate impact can be argued if the decision was based on a reasonable factor other than age. The Supreme Court held than the employer must not only produce evidence raising the defense, but also persuade the fact finder that it was reasonable to rely on this factor. This decision makes it more difficult for employers to defend themselves in age discrimination claims.


In this case, the criterion was subjective supervisors’ rankings without objective criteria. This ruling is a mandate for more objective standards, better documentation and more management oversight.


David Certner, American Association of Retired Persons’ Chief Legislative Counsel said the decision would prove “vital to the creation and maintenance of a workplace that is fair and free of age bias.”

Training is your best defense

• Managers need to understand their roles and the laws with which they must comply.
• The U.S. Supreme Court and the EEOC have strongly encouraged harassment prevention training for all employees—punishing employers who fail to educate their employees.
• The phrase, reckless indifference was coined in Mathis v. Phillips Chevrolet, Inc. 2001 when a manager had hiring authority yet discrimination training was not provided by the employer.
• Wage and hour training along with discrimination training build a good faith defense. More importantly, it’s smart to teach managers to comply with employment laws.
• Courts give employers an affirmative defense when the employer can demonstrate that it has policies in place and trains everyone periodically and effectively.

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