After several years of slow declines, the number of Charges of Discrimination filed with the Equal Employment Opportunity Commission surged by 15% in fiscal year 2008.  95,402 Charges were filed nationwide, the highest number since the EEOC began in 1965.

The agency attributes the increase to the deteriorating jobs market.  Age discrimination claims alone surged by 29% last year.  Retaliation claims were also up over 22% from the previous year.  Given the increasing number of persons losing their jobs, and those actively seeking work, this trend is likely to continue.  The EEOC’s fiscal year ended on September 30, and the 2008 numbers only reflect the beginning of the ongoing wave of layoffs.

In addition to the current economic downturn, the EEOC will begin enforcing the provisions of the Lily Ledbetter Pay Fairness Act, and the ADA Act Amendments of 2008.  The ADAAA’s expansion of the definition of protected disabled persons alone should result in a sharp increase in ADA claims over the next year.

When filing Charges involving layoffs resulting from economic conditions, employees usually do not challenge the employer’s need to reduce the workforce.  Instead, they contend that their jobs were eliminated instead of other less senior or qualified workers.  The sharp rise in the number of age discrimination claims demonstrates the need for employers to pay particular attention to the effect of reductions in force on older workers.

Coincidental to these statistics, President Obama’s proposed budget contains significant increases for federal agencies charged with enforcing employment and labor laws and regulations.  In addition to the EEOC, the budget requests increased funding for the Department of Labors’ Wage and Hour Division, the Office of Federal Contract Compliance Programs, and the Occupational Safety and Health Administration.

Facing more Charges and increased agency enforcement resources, employers need to pay heightened attention to discrimination, wage and hour, and health and safety compliance efforts.  Employers contemplating a reduction in force should make certain that the business criteria used for the decisions are documented, and that the layoff selections have been thoroughly vetted for potential disparate treatment and disparate impact on classes of protected persons.