In a year-end review, the Equal Employment Opportunity Commission reported that workplace discrimination complaints in 2009 reached the second-highest level in history. In total, 93,277 claims were filed with the Commission in 2009, resulting in a record-high $294 million in payments or penalties through administrative enforcement and mediation.

The most frequently filed charges in 2009 were complaints alleging race-based discrimination (36 percent), retaliation (36 percent), and sex discrimination (30 percent). However, the data shows that three other types of discrimination complaints are on the rise. Disability complaints increased by 10 percent over 2008 levels, while national origin complaints rose 5 percent and religious discrimination claims were up 3 percent. Age-based claims dipped slightly from their record-high numbers in 2008.

Discharge claims continue to be the most costly. In this economic climate, every claim of discriminatory or retaliatory discharge carries greater economic risk, as the complainant will likely find it much harder to obtain new employment with comparable compensation. Therefore, even more than in good economic times, employers in a recession should carefully review all terminations for the “red flags” that might support a claim of discrimination or retaliation. These may include, among many others:

  • lack of adequate documentation;
  • inconsistency with past treatment of similar situations;
  • inappropriate comments made by the decision-maker or in connection with the termination;
  • recent protected activity by the employee (such as making a harassment complaint);
  • for performance-based terminations, failure to provide adequate notice of the performance deficiencies and a reasonable opportunity to correct them;
  • for economic-based terminations, inability to explain clearly why this worker was selected for termination over others not in the same protected class (e.g., why the African-American was laid off while white workers in similar positions were retained).