Earlier this week, I made my long-awaited (ok, long-awaited by ME) return on WNPR’s ever-popular “Where We Live” show.

As always, I’m thankful for the invite.

My appearances date back quite some time (remember pizza and child labor in 2010?), so it was nice to be back in the studio to talk about age discrimination and other workplace issues.

So, is age discrimination still a problem?

The answer is plainly “yes”.

A related question, though is how MUCH of a problem? And is it getting better or worse?

By one measure, it’s been going down in a noticeable way the last several years.  In 2008 for example, there were over 24,500 charges filed on age grounds; in 2017 – it was down below 18,500 – a drop of over 20 percent.

Statistics, though, only tell part of the story because historically, you’d expect more to see more charges in a recession than an improving economy.

An article by The New York Times over the winter raised concerns that Facebook Job Ads were being used in a way to target younger potential applicants.  And some have suggested that the federal law itself is too weak.  

So, recognizing the age discrimination remains an issue in society is an easy task. But solving this — and ensuring that workplaces have a diversity of ages, remains a issue of which there are no easy answers.

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.

 

numbersAt this week’s CHRO information session, I was able to review the new statistics released by the CHRO this fall regarding case filings and dismissals.

They’ve now been posted live on the CHRO’s website here.

It’s something I’ve covered each year and I’m always fascinated by what these statistics show — and don’t show.

What’s the big takeaway this year?

The trend of increasing numbers of discrimination complaints being filed that we have seen in Connecticut since 2012 (when just 1838 complaints were filed) is showing no signs of abating.

Indeed, in the fiscal year ending June 30, 2016, 2616 complaints were filed, up from 2482 the year before.  Thus from FY 2012 to FY 2016, that’s a huge 42 percent increase in the number of claims filed.

Now, not all complaints with the CHRO are employment-related.

But as with prior years, that number has been going up as well.

For FY 2016, there were 2160 such complaints filed, up from 2017 last year, and up from 1559 four years ago.  Again, that’s a 39 percent increase in employment-related claims filed over the last four years!

I’ve noted this in prior years but these increases are head-scratchers.  Normally, in an improving economy, claims go down.  While the Connecticut economy hasn’t been growing a lot, it is still somewhat stable.  

Moreover, such increases are counter to the national trends which have seen the numbers of claims filed with the EEOC decrease from their peaks in 2010, 2011 and 2012.    (Though I should note that in FY 2015, the EEOC did see a slight increase — but the numbers are still down 10 percent from their peaks early this decade.)

I speculated at this week’s informational session that it could be that more claims are being filed because it’s easier than ever to pass the Case Assessment Review stage and try to get something at a mediation.  Those at the CHRO challenged that argument but no one at the meeting had a good idea of what could be causing the rise.

Regardless, employers who have been sensing that more complaints than ever are being filed aren’t far off the mark.

I’ll take a deeper dive into the statistics in tomorrow’s post.

For anyone who has been following the U.S. Supreme Court’s recent decisions interpreting wage & hour, discrimination and retaliation claims, yesterday’s decision in Kasten v. Saint-Gobain Performance Plastics (download here), can hardly come as a surprise.

Indeed, in a 6-2 decision, the Supreme Court concluded that to "file" a complaint, an employee need only provide an oral complaint of a violation of FLSA to his employer and not a written complaint; once the employee has done so, then the employer is prohibited from retaliating against that employee because of the complaint.

The implications of this case nationally have been well-covered this morning by others, including Jon Hyman over at the Ohio Employer’s Law Blog. He concludes:

This case merely brings the FLSA’s anti-retaliation provision in line with most, if not all, other statutes. Employers simply need to be aware that they take must all complaints seriously, whether communicated verbally or in writing.

The takeaway that is significant for employers, however, is just how difficult oral complaints are to handle. Oral complaints often place employers in the difficult position of having to prove a negative—that is, that the employee did not complain. To combat this problem, employers should consider establishing a protocol that all complaints must be documented, whether by the employee making the complaint or the individual receiving it.

The Employers Handbook blog also has a good summary here. 

But what are the implications for employers in Connecticut?

Notably, Connecticut’s anti-retaliation provision under Conn. Gen. Stat. 46a-60(a)(4) also uses the phrase "filed a complaint", but there is a broader context to that section which, one could argue, makes the Supreme Court’s decision irrelevant.  The statute prohibits employers from retaliating against a person because that person "has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84."

Thus, one could perhaps argue while that the "filing of a complaint" in Connecticut appears to require some action at the CHRO and EEOC (and would not cover oral notice), the phrase "opposed any discriminatory practice" still has to be taken into account.

The anti-retaliation provisions of the state wage and hour laws also should be reviewed by employers, but there too, there may be some issues.

Conn. Gen. Stat. 31-69b states that an employer shall not retaliate against:

any employee because the employee has filed a claim or instituted or caused to be instituted any investigation or proceeding under part III of chapter 557 or this chapter, or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by part III of chapter 557 or this chapter.

Once again, the language is similar to that used under federal law but also has some differences too.  Will a court in Connecticut now interpret it the same way because Connecticut courts are free to look to federal court decisions for guidance on these types of similar statutes? 

Those are the issues that are left unsettled by the U.S. Supreme Court’s decision yesterday.  But the Court’s decision yesterday should put one urban legend to rest: this is not a blindly pro-business court. 

Lastly, take a minute to read Justice Scalia’s amusing dissent.  He takes issue with the whole view of the majority and noted that there still must be an addressee to receive the complaint.  "It presumably does not include a complaint to Judge Judy." 

Pop quiz time.

Over the last 18 years, has the number of claims filed at the Superior Court level in Connecticut has: a) Gone up; b) Stayed the same; c) Gone down

If you answered "a", congratulations.  The number of cases filed has gone from 57,620 in 1992-93 to 78,275 in 2009-2010. Many people believe that we are now a litigious society in which anything and everything turns into a lawsuit. 

But now for extra credit, do you know what the rise in the number of cases can be attributed to? 

If you answered "foreclosure" cases and "collection" cases, kudos to you again.

In fact, the civil court statistics released by the judicial branch recently show that the number of foreclosure cases has doubled in the last 18 years (up to 26,728 cases in 2009-2010). And the number of collections cases is at its highest levels (up to 25,930 cases in 2009-2010).

But if take these cases out of the overall numbers because they are economically-driven, you come up with an amazing statistic: The overall number of civil cases filed has actually gone down over the last 18 years — from 26,725 to 25,617.

For cases dealing with employment law issues, that trend can also be seen in a big drop in the number of appeals of CHRO decisions, to the numbers of "tort" cases filed.  Indeed, the number of miscellaneous tort cases filed in Connecticut is down nearly 25 percent over the last 18 years.

In short, the notion that we are awash in litigation in Connecticut or that litigation has increased over the last 18 years is not supported by the statistics.  Indeed, these statistics are consistent with the numbers of cases filed at the CHRO as well

For employers, this is important to keep in mind as you consider the risks that your actions may lead to lawsuits.  A lawsuit may eventually be brought, but if you believe that we are more litigious now in Connecticut than we were 18 years ago, these statistics should challenge your beliefs. 

Last week, I publicized the release of federal court statistics; that story has now been picked up by the American Lawyer which crunches the numbers in more detail

But now you can break out your abacus again. The Connecticut Commission on Human Rights and Opportunities has also just released their annual repcourtesy morgue file "abacus"ort (available for download here) which contains all sorts of notable numbers, statistics and factoids. Over the next few days, we’ll slice and dice some of the numbers to see what trends can be glistened.  For some background, you can view my post analyzing last year’s numbers here. 

Here are some of the top-level observations:

  • Consistent with the trend at the EEOC this year, employment claims filed with the CHRO are up for the 2007-2008 fiscal year ending June 30, 2008.  Specifically, claims are up to 1814, from 1743 for the year ending June 30, 2007 – an increase of about 5 percent.  Not a huge jump, but still notable. However, claims are still way down compared with 5 years ago (when they topped out at 2211).
  • Retaliation claims are up substantially over the last year. Specifically, claims for 2007-2008 were 618, compared with 507 in 2006-2007 — an increase of over 20 percent.  Also notable, retaliation claims continue to make up a large percentage of the claims being filed.
  • "Harassment" and "Sexual Harassment" claims are also up substantially from last year’s numbers. For sexual harassment claims, this reverses a trend of decreased numbers that had existed for the last several years.

For employers, what is the immediate takeaway from these statistics? 

These statistics show that after years of decreases in the numbers of employment claims, those decreases have come to an end.  Being vigilant about human resources policies and procedures, and sensitive to the issues relating to various employment laws will be one way to reduce the risk that a claim filed will turn into a substantial issue down the road.