Yesterday, the Equal Employment Opportunity Commission released statistics showing that charges of job discrimination had risen. “93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year (FY) 2009.” The federal government’s fiscal year ends on September 30. The highest categories were race, retaliation, and gender. The total claims are the second-highest on record, as were the total age discrimination charges.
Interpreting these statistics without more information involves making a lot of assumptions. The economy tanked and layoffs were rampant. So people who lost their jobs, and could not find another one, may be more likely to file a charge of discrimination. Cash-strapped companies may have been less likely to offer good severance packages. Severance agreements nearly always require the recipient to release discrimination claims.
But the existence of more unhappily unemployed people is only a part of the story. Was there more discrimination as well? When a company has to let go a portion of its workforce, what factors are used? In my interviews with potential clients, I am getting the sense that age is often figured in, though perhaps subconsciously. An employer trying to trim the workforce and decide which workers to retain may utilize biases in favor of the young, such as perceived energy level, ability to keep up with technology, youthful looks, and cheaper health insurance benefits. These same sorts of biases can eliminate women (they won’t work hard if they have or want families), blacks (they don’t fit in here, and we need “team players”), the disabled (they can’t handle the job if it gets harder), and so forth.
The unfortunate part is that proving discrimination in reductions in force is hard, unless a decisionmaker is candid about the reasons for cutting someone. Usually the proof is circumstantial, and the courts can be hostile to these claims. I don’t think that judges can relate to age discrimination, especially, since they are well insulated personally from this kind of bias.