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The Times Says “Most Lawyers” Won’t Take Age Discrimination Cases Anymore. Really?

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Litigation

In Tuesday’s The New York Times, an article (that, as of Monday evening was one of the lead pieces on the NYTimes.com website) argues that age discrimination continues to exist in society and that it is hitting the baby boomers particularly hard.  (Indeed, the article’s tag is ”for-laid-off-older-workers-age-bias-is-pervasive”.)

I do not challenge the assertion that age discrimination continues to exist in certain parts of society.  The statistics quoted in the article do undermine the article’s assertion though because the unemployment rate for 55-64 year olds is 5.4 percent (compared with 7.4 percent) for the general population.  I’ll leave it for others to debate what the statistics mean.

But the article does make one blind assertion that should not go unchallenged.

First, the background: The U.S. Supreme Court in 2009 changed the standard of proof needed to establish an age discrimination case to a “but for” standard.  As I noted back then, however, I didn’t think we’d see a huge shift in age discrimination cases.  Yes, it might make it a little more difficult for an employee to prove his or her case, but it wouldn’t change how many cases are handled — particularly in states that have their own anti-discrimination statutes.

Indeed, a recent article suggests that courts haven’t made much of a shift in how they handle ADEA claims in the wake of the Supreme Court’s ruling.  And another article for an ABA conference suggests that the practical impact of the decision has been “vastly overstated.”

But try telling that to the Times. Indeed, it goes on to make a remarkable, uncredited assertion: “Since the Supreme Court ruling, most lawyers won’t even take age discrimination cases.”

Most lawyers? From where does the Times get this assertion? It fails to say. It provides no statistics, no cite, no quote to support this.  Nothing.

A look at the EEOC filing statistics doesn’t support this. Indeed, the statistics fail to show any significant drop off of age discrimination cases after the Supreme Court’s ruling.

In Fiscal Year 2009, there were 22,778 charges filed. In the next year, there was actually an increase to 23,264 claims filed.  By FY 2012 (the last available statistics), there were still 22,857 claims filed — a lesser amount is, in part, to be expected as the economy improves.

Now, admittedly, the charges don’t account for claims that were filed with an attorney’s assistance. But if “most lawyers” won’t take age discrimination cases anymore, wouldn’t you expect to see a significant dropoff?

NELA – the National Employment Lawyers Association — continues to put forward CLE programs discussing how to advance ADEA claims even with the Supreme Court’s decision.  So, even the group that represents employees the most isn’t throwing in the towel.

So, where did the Times get this assertion from? I’ve hunted for a source but have yet to find one.

So, I turn to you readers.  What do you think? Is The New York Times correct in its assertion? Or is this a case for the Times’ Ombudsman?

 

  • http://www.ottingerlaw.com/ Robert Ottinger

    We love age discrimination cases at my firm in New York City. But this is because NYC has its own Human Rights Law that remains very strong. We use this law instead of the federal law for age discrimination cases. If we were not able to use this law though, we probably would not take many age discrimination cases but that “But For” test is a tough hurdle. But many states and localities have their own discrimination laws as you note, and this provides an easy work around. So I tend to agree with you that most employment lawyers are still taking age discriminaton cases.