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December 02, 2009

"Poor economy blamed for increase in age-discrimination inquiries"

Poor economy blamed for increase in age-discrimination inquiries

Jason Odom, an employment attorney with Gould Cooksey Fennell in Vero Beach, said he has had a slight increase in agediscrimination inquiries but not an alarming increase.

"One of the major contributing factors is the economy," Odom said. "As people are laid off from work, it's harder to find another job."

So workers age 40 and over, who were protected by a 1967 law prohibiting age discrimination in the workplace, are exploring their options, including possibly getting their jobs back.

But age-discrimination complaints also appear to be a growing trend.

"Age-discrimination claims have spiked in recent years," he said.

According totheEqual Employment Opportunity Commission (EEOC), approximately 15,000 claims for age discrimination were filed in 1997. That number jumped to over 24,000 in 2008."

"The numbers were stagnant at about 15,000 in the 10 years from 1997 to 2007 and went up by about one third from in 2008," he said. "That's a pretty significant increase."

"Discrimination is prohibited at all phases of the employment relationship, from the hiring process to termination," he said. "There are essentially two forms of discrimination: disparate treatment and adverse impact discrimination. Disparate treatment discrimination concerns the situation in which the employer fires a specific employee because of his age."

It's one-on-one; between an individual and the employer.

"On the other hand, adverse impact discrimination concerns a workplace policy that might be neutral on its face, but adversely impacts older workers," he said.

This is policy-based discrimination, which may or may not be an official, written policy.

"For example, suppose an employer instituted a policy that required termination of all employees with 30 or more years of seniority. As you can imagine, such a policy would likely have an adverse impact on older workers, and therefore be illegal," he said.

"For decades, age-discrimination claims were analyzed similar to Title VII claims for discrimination based on gender, religion, etc.," Odom said. "The law essentially required an age-discrimination plaintiff to prove that his or her age was a ‘motivating factor' in the employment decision, i.e., termination."

Age, gender, race, religion, etc. did not have to be the only factor, just a motivating factor, he said.

"In 2009, however, the United States Supreme Court dealt a blow to older workers when it issued its decision in Gross vs. FBL Financial Services, Inc.," he said.

"In the Gross decision, however, the Supreme Court held that an age-discrimination plaintiff must prove that his or her age was the ‘but for' cause of the employment decision," he said. "Simply put, unless age was the only reason, you have no case."

"This decision smacks of discrimination itself," he said. "What could possibly justify treating discrimination based on age any different than discrimination based on race or gender? Many experts agree that the Gross decisionwill have a chilling effect on the rights of older workers and will make it more difficult to seek legal redress for age discrimination."

Odom said Congress is being pressured by groups that represent older workers and he thinks they will act to reverse the decision through legislation similar to the Lily Ledbetter Act signed into law in January.

According to the EEOC Web site, the Ledbetter Act restores the pre-Ledbetter vs. Goodyear Tire & Rubber Co., Inc., EEOC rules that prohibit wage discrimination for Title VII protected workers.

"If an employee thinks that they have been discriminated against because of their age (or other factors), they should contact the Equal Employment Opportunity Commission to file a ‘charge of discrimination,'" Odom said.

The Charge of Discrimination must be in writing, signed and mailed to the EEOC Miami District Office at One Biscayne Tower, 2 S. Biscayne Blvd., Suite 2700, Miami, FL 33131.

Call (800) 669-4000 for more information or for TTY users, (800) 669-6820. For more information about the filing process and time limits, visit http://www.EEOC. gov.

"Filing a charge does not require a lawyer, but a lawyer usually is needed when pursing a claim in court," said Odom.

"Additionally, it is helpful to have the assistance of a lawyer when filing a claim so that you properly complete the process," he said.

According to the EEOC Web site, workers are protected from discrimination based on age, disability, genetic information, national origin, pregnancy, race/ color, religion and sex/gender. They are also protected against retaliation, sexual harassment and discriminatory compensation (unequal pay.) In addition to laws that the EEOC enforces, there are federal protections from discrimination for additional reasons including sexual orientation, status as a parent, marital status, political affiliation and conduct that does not adversely affect the performance of the employee.