zombieAs I did last year, after I posted on the general statistics of the CHRO to see if we could glean any trends, I took a deeper dive into what the statistics this year show.  And there were definitely a few surprises.

Obviously, at the risk of repeating yesterday’s post, FY 2015-2016 was a very big year for employment claims.

But because less employees are being fired or laid off (unemployment in Connecticut is at moderately low levels and the newest national figures this morning show just a 4.6 percent unemployment rate) than in a recession, what gives?

Well, if you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — there was a modest increase in those claims to 1216 in FY 2016, up from 1174 in FY 2015.  But still, discharge claims are down from their historical peaks in 2003, when there were 1385 such claims.

But the bigger increase continues to be in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.

It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!  That’s a 35 percent increase in just the last two years.

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.  

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Retaliation claims are also up again — an increase from 753 to 776. Though, it should be noted, that rise is a bit slower than the past few years.

What’s the takeaway?

As I noted last year, you may be looking for claims in the wrong spot.  Dismissal claims are up modestly but “harassment” and “terms and conditions” claims continue to see the biggest increases.

Thus, managing your current employees and getting legal counsel involved to help advise you, may be more helpful to keeping such claims to a minimum than just talking with counsel exclusively about terminations.

Regardless, employers should continue to be mindful that the trend of increased discrimination claims in Connecticut shows no signs of slowing down.

 

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?