Thursday, November 12, 2009

New EEOC Statistics Show Age Discrimination Complaints are . . . Down?

Via Mitchell Rubenstein at the Adjunct Law Prof Blog:  the National Law Journal (subscription req'd) is reporting that new (yet to be released) EEOC statistics surprisingly show a 7% decline in the number of age discrimination complaints filed this year, as compared to last year. 

Conventional wisdom has it that the number employment discrimination complaints (of all kinds) are up as a result of layoffs and terminations in the economic downturn.  After all, unemployment rates recently topped 10%.  If more employees are being terminated across the country, it stands to reason that we would see a corresponding surge in employment discrimination complaints.  And, as conventional wisdom also has it, older workers are likely to be particularly hard hit in tough economic times.  Last year, the data seemed to bear that out.  For fiscal year 2008, all EEOC complaints were up by 15% over 2007.  But ADEA complaints led the way, increasing by almost 29%.

So why the decline in ADEA charges this year?  Employment lawyers interviewed for the NLJ piece suggested that perhaps more plaintiffs are turning to state law, and choosing not to file charges with the EEOC in order to avoid damages limitations under the ADEA.  That seems to be at least a plausible explanation, given that most federal courts have ruled that compensatory damages for pain and suffering and punitive damages are not available under the ADEA.  But that is nothing new.  It does not seem to explain why ADEA charges increased dramatically in 2008, but then fell back in 2009 – unless several states changed their age discrimination laws in the interim.   

Maybe this is the continuation of a trend toward more state-only filings in all types of employment discrimination cases, due not only to limitations on damages under some federal statutes but also to a growing perception that the federal court system is generally hostile to employment discrimination claims.  Marcia McCormick’s recent post discussed that possibility.  If the new ADEA numbers reflect a growing state-only preference among discrimination plaintiffs, then we might expect a similar decline in the number of EEOC charges of other types of discrimination.  At this point, though, it is too soon to tell.  According to the NLJ article, the EEOC is not yet commenting on the data relating to other types of discrimination complaints.

One possibility that could explain a unique decline in age discrimination charges (without a corresponding decline in other federal discrimination charges) is the Supreme Court’s opinion in Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009).  After Gross, ADEA plaintiffs do not get the benefit of the mixed-motive burden-shifting that is available to Title VII plaintiffs, but must instead prove that age was the “but for” cause of the adverse employment action.  This ruling may have chilled ADEA charge filings, while having no effect on other types of discrimination charges.  But the Gross opinion was not handed down until mid-June of this year, meaning that only a few months of charge statistics could have possibly been affected by that ruling.  The EEOC’s fiscal year 2009 ended on September 30, 2009.   

A few other possible explanations come to mind:  Perhaps more discharged employees are proceeding directly to arbitration under increasingly common mandatory arbitration provisions.   Maybe employers are being more careful to conduct reductions in force in a way that avoids any statistically significant disparity that might support an inference of age discrimination.  Perhaps older workers were the first ones targeted by employers at the beginning of the economic downturn, so that their discrimination charges were filed primarily within the reporting period for 2008, rather than 2009. 

I would be curious to hear any other hypotheses.  No doubt we will have a better understanding when the EEOC releases all of the 2009 statistics.    

With that, I believe the time has come for me to sign off as guest blogger.  I want to again thank Rick Bales, Jeffrey Hirsch, Marcia McCormick, and Paul Secunda for allowing me to participate.  It has been a rewarding and enjoyable experience.  Thanks also to the readers who offered their thoughts on my posts.

-Jason Bent

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I think the most likely explanation is that older workers were the first ones targeted for layoffs by employers at the beginning of the economic downturn. I think the Gross case was too recent and too abstract to actually cause a decrease in EEOC Charge filings.

Posted by: CJ McKinney | Nov 12, 2009 10:58:33 AM

Even if the state-only hypothesis were largely true, I'd not think there'd be much of an effect on the EEOC's charge statistics. If the federal law arguably covers the charge, there's typically no such thing as a "state-only filing." Most states and localities have fair employment practices agencies with work sharing and dual filing agreements with the EEOC. So, even if the charge were filed with the state or local agency, the EEOC would get the charge as well. And that would show up in the EEOC's charge statistics. That the plaintiff is ultimately interested in filing only a state law claim would not typically change the dual charge process, as far as I'm aware. I suppose the charging party could instruct the state/local agency not to file with the EEOC, but I can't imagine that happens very often at all.

For instance, in Marcia's previous post on the topic she states that the plaintiff "bypass[ed] EEOC and Title VII completely." I'd be surprised by that. The complaint Marcia linked indicated that the plaintiff filed a charge with the MO Human Rights Commission. Because the MO Commission is party to a Dual-Filing Agreement with the EEOC, I suspect the plaintiff's charge was filed with the EEOC and, as a result, would be reflected in the EEOC's charge statistics, even though the ultimate lawsuit claimed only state law violations.

Posted by: Jamie Prenkert | Nov 12, 2009 1:32:55 PM

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