Discrimination Charge Filings Spike

Spring 2009Newsletters California Update - Second Quarter 2009

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California’s Department of Fair Employment and Housing (DFEH) has just released statistics concerning claims filed in 2008. Employment discrimination filings rose more than 14 percent over 2007, to 18,750 – their highest level since 2002. The most precipitous increase involved claims of age discrimination. Complaints alleging age discrimination rose 21 percent from the prior year and represented more than 10 percent of all employment claims filed.

DFEH claims alleging certain other prohibited bases rose at rates near or below the overall increase in the number of complaints. For example, compared to 2007, sex discrimination claims (including claims of sexual harassment and sexual orientation discrimination) and claims of discrimination based on race/color each rose approximately 13 percent. Retaliation claims rose 11 percent and physical disability claims rose 7.5 percent.

That physical disability claims are rising at a slower rate than the overall number of complaints is somewhat surprising. We expect those numbers to rise more rapidly in 2009, given court decisions expanding employers’ obligations to find accommodations for disabled employees. But the most striking numbers are those for age discrimination claims. These numbers reinforce a perception that the economic downturn is having a disproportionate impact on older workers.

Likewise, the EEOC reports that workplace discrimination charge filings are up 15 percent from 2007. There were 95,402 charges filed in 2008 compared with 82,792 charges filed in 2007. Retaliation and age-based charges have increased the most. Several reasons are cited for the increase - increased diversity and shifts in the labor force, heightened awareness of the law and the economic climate. It is also worth noting that the EEOC website makes it easier for employees to file charges with the initial intake questionnaire online.

The increase in charges will result in more right-to-sue letters being issued and, ultimately,more lawsuits being filed. As businesses continue to trim their ranks to adjust to the economic recession, expect further increases in DFEH and EEOC charges in 2009. Employers are advised to manage layoffs and terminations with open communication and consistent decisionmaking to avoid any appearance of discrimination.