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Discrimination filings climb

Officials with the U.S. Equal Employment Opportunity Commission have released statistics showing an all-time high of 99,922 workplace discrimination filings over the course of fiscal 2010 — the most ever in the agency’s 40-year history.  

A still-struggling economy is likely a driving factor,  say some attorneys working in the employment field.

“I think the reason is the increased number of layoffs and downsizings by employers,” said Matthew Fusco, a partner with ChamberlainD’Amanda, who represents plaintiffs in employment litigation. “I am seeing a lot more of everything. I have been reviewing a lot more severance agreements [for example].” 

Compared to counterparts in many European nations, there are relatively few federal laws on  the books protecting U.S. workers from being fired. As a result, many may be seeking redress through other means, he said.

“People turn to what’s available to them when they feel they have been unfairly terminated,” he added.

“I certainly believe there have been an increased number of filings locally,” said Sharon Porcellio, of Ward Greenberg Heller & Reidy LLP, who often represents defendants in employment litigation. As laid off workers have become more pessimistic about finding a new employer, the attractiveness of suing their old employer may have increased, she believes.

Jeffrey Calabrese, a partner with Harter Secrest & Emery LLP, who also works on employment defense, agreed.  “I think employees are pursuing cases that they might not ordinarily have done,” he said. Given the numbers provided by the EEOC, it is impossible to tell whether the increased number of filings are a result of pervasive discrimination by employers or simple fact that more people are out of work due to the economy. Calabrese said that he believes it is the latter. 

According to numbers released by the EEOC last week, the number of filings for all major categories of private sector charges rose in 2010. Those included  charges filed under Title VII of the Civil Rights Act; the Equal Pay Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and the Genetic Information Nondiscrimination Act. For the first time ever, however, retaliation under all statutes exceeded race as the most frequent charge, 36,258 cases to 35,890 cases.

That did not surprise Fusco; thanks to the 2006 U.S. Supreme Court decision Burlington v. White, the standard for proving retaliation is lower than that of harassment. “You don’t need to reach that pervasive and severe level,” he said.

Despite the increase in filings for 2010, EEOC officials emphasized efforts to slow the growth of cases facing the agency. The commission ended FY 2010 with 86,338 pending charges — an increase of only 570 charges, or less than one percent. In comparison, between 2008 and 2009, the EEOC’s pending inventory increased 15.9 percent.

The 2010 data shows that the EEOC filed 250 lawsuits, resolved 285 lawsuits, and resolved 104,999 private sector charges. Further, the agency gained roughly $404 million  from employers through its enforcement, mediation and litigation efforts, which is the highest level of monetary relief ever obtained by the agency through the administrative process.