Retaliation, discrimination, wage claims keep pace with hot economy

Labor and employment attorney Meghan Lehner admitted that sometimes when she gets a call, she has to check her calendar to make sure it is still 2018.

Lehner

Workers tell her stories of discrimination that harken back to times long thought past. These tales include co-workers and managers using the n-word, putting nooses in cars or lockers and making slurs against gays and lesbians. Harassing workers or denying them opportunities because of their race, national origin, gender, age or sexual orientation are continuing despite the diversity in the workforce and employers’ heightened need for labor.

Nationwide, the economy is booming and the unemployment rate has been falling since hitting a high of 10 percent in 2009, according to the Bureau of Labor Statistics. The U.S. Department of Labor announced the number of job openings in the United States had exceeded the number of job seekers. Data showed 6.7 million jobs available in April and 6.3 million people looking for work.

By July, the unemployment rate stood at 3.9 percent.

Along with people going back to work and jobs being plentiful, charges filed with the U.S. Equal Employment Opportunity Commission dropped to 84,254. This is down from the 99,947 filed at the peak of the Great Recession in 2011 but still outpacing the 75,000-plus lodged in 2005 and 2006, the years leading to the downturn.

In 2017, Indiana was 16th in the number of charges filed at the EEOC. Workers submitted 2,389 charges last year, with race and sex discrimination and retaliation comprising 33.2 percent, 31.8 percent and 33.9 percent, respectively, of the complaints.

Ebert

Kim Ebert, shareholder in the Indianapolis office of Ogletree Deakins Nash Smoak & Stewart, P.C., noted conventional wisdom holds that when the economy is good and jobs are plentiful, workers who get terminated are less likely to file a claim against their former employer. However, there has been an increase in retaliation and harassment filings, as well as wage claims.

“I have not seen a drop-off in the volume of claims being made, notwithstanding the robust economy,” Ebert said, adding litigation is “still pretty active.”

Lehner, attorney at Cleveland Lehner Cassidy in Indianapolis, speculated the number of EEOC claims is being spurred by the diversity of the Hoosier workforce. People from very different backgrounds and cultures are toiling alongside one another, so they may have conflicting ideas and behaviors that ignite clashes.

“It’s going to take more than a drop in the unemployment rate to stop discrimination,” Lehner said. “People need to change their thinking, people need to change the way they treat one another. Discrimination is as much an individual problem as it is a corporate problem or a government problem.”

Lower damages

With unemployment so low, just about anyone who wants a job can find one. An employee who leaves or loses a job has an easier time in this economic climate finding a new position, and that could mean workers will not recoup as much if they file a successful workplace claim.

Peter Agostino, shareholder at Anderson Agostino & Keller P.C., practices in South Bend, next door to the now-thriving recreational vehicle manufacturers in Elkhart County.

During the Great Recession, those factories shed workers and unemployment in Elkhart County hit 20 percent in March 2009. As Agostino explained, the consequences of losing a job then were severe because employees often had no paycheck for long periods of time. But nine years later, Elkhart’s unemployment rate fell to 2.2 percent in March 2018. People are not having trouble finding work.

Similarly, workers in other parts of the state and across the country are landing new jobs faster and, sometimes, at a higher salary, Agostino said. Today, workers who file a retaliation or discrimination claim against a former employer likely will be awarded less in damages. Because they are getting reemployed quicker, they are not suffering as great, or possibly even any, economic loss.

Ebert thinks this situation could reduce the number of claims being filed. He attributes some of the continuing high volume of employee lawsuits to the rise in plaintiffs’ lawyers practicing labor and employment law. If the value of the claims drop because employees are finding substantially similar jobs, then he expects fewer claims will be filed.

Hahn

Indianapolis-based solo practitioner Stephanie Jane Hahn believes her heavy workload has to do less with the economy and more with the political climate. Sexual harassment along with racial and age discrimination are thriving because some employers feel emboldened by the rhetoric and actions of the Trump administration, she said.

In addition, Hahn said the General Assembly has hindered labor unions by making Indiana a right-to-work state. Organized labor is hurting financially because workers covered by the collective bargaining agreements no longer have to pay dues. Hahn said Hoosier employers know this and are taking advantage by engaging in adverse actions against employees that they might not have done 10 years ago.

“I think one of the things happening, with the erosion of union life and the Legislature declaring war on unions, folks don’t have a union steward to talk to or a collective bargaining agreement to rely on,” Hahn said. “Over the past 10 or 20 years with the union decline in membership, employees are calling folks like me to help them out because they don’t have anywhere else to turn.”

Impact of inflation

At the same time, attorneys are seeing employees feeling empowered. Certainly the #MeToo movement is convincing more women to fight back against harassment and discrimination. Also, some workers are convinced if they do not stand up for themselves, the situation will not improve.

In addition, employers are running afoul of the requirements in the Family and Medical Leave Act and the Americans with Disabilities Act. Moreover, Ebert said, wage claims are rising as workers assert they were improperly classified and paid less than they should have been. The law in that area is complex and employers can “unwittingly trip the legal line.”

Labor and employment lawyers are not anticipating any slowdown in claims. Indeed, if the economy maintains its heat, Agostino said inflation could bring more lawsuits. The Department of Labor data is showing a rise in inflation with the consumer price index in recent months outpacing wage gains.

Based on her 23 years in the legal profession, Hahn said the atmosphere has to be very bad before an employee will file a complaint. Many hope they will be able to work out a resolution while they are still employed. And while that is sometimes the case, more often than not, employees will not call a lawyer until they have been fired, demoted, transferred or had their pay cut.

Lehner agreed. She said employees have a difficult time when deciding to make a claim against their boss. They not only know proving retaliation or discrimination can be hard, but they also worry other employers will learn about the lawsuit and be reluctant to offer them a job in the future.

“I’d like to see things change,” Lehner said. “I could be out of a job, but there are other things I could do.”•