CPA Practice Advisor - 38

THE LABOR LAW ADVISOR
AGE AND OTHER POST-PANDEMIC
DISCRIMINATION CLAIMS

THE DEVASTATING LOSS of jobs and permanent business closures are the most significant
byproducts of the Coronavirus pandemic affecting U.S. workplaces. The record unemployment it has created, as well as cost-cutting measures taken by businesses to survive,
could lead to a sharp rise in claims of employment discrimination in the near future.
The possibility of such claims has
likely been exacerbated by the recent
national focus on actual or perceived
social and racial injustice in our
society in general. Any one of these
unrelated circumstances could create
the potential for claims of workforce
discrimination on the basis of one or
more of the several statuses protected
under Title VII of the Civil Rights Act of
1964. Together they almost assure that
such claims will arise in the days ahead.

DISCRIMINATION IN A
RECESSION
In 2019 the number of employee
charges alleging discrimination filed
with the Equal Employment Opportunity Commission (EEOC) was the
lowest in 20 years. Each year between
2016 through 2019 saw a significant
decline in such charges. The decline
coincided with the growth in employment during that same period.
Full employment, with people
working all of the hours they want and
then some, understandably pushes
concerns about perceived unfair or
discriminatory treatment to the back
burner. The correlation between the
level of employment and the number
of discrimination charges filed was also
seen in the years immediately following
the "Great Recession" of 2008 and 2009.
The years 2010, 2011, and 2012
had the highest number of charges
of discrimination filed in the prior
18 years, as well as some of the
highest unemployment rates seen
in recent years.
The loss of jobs as a result of the
pandemic is unprecedented, and

AUGUST 2020 ■

reminiscent of the conditions during the
Great Depression. Current estimates are
that up to 30% of all restaurants in the
U.S. have closed or will close. It is also
estimated that 25% of all retailers will
also be permanently shuttered. Some
were already struggling as the result
of the tremendous growth of on-line
shopping, especially Amazon.
Businesses that survived and those
attempting to reopen have done so with
reduced staff in most cases. Job eliminations, combinations and consolidations,
restructuring and similar changes may
become permanent for many employers.
Since the majority of today's workforce
falls within a protected category under
Title VII, there will be cases where an
employee within one or more of the
various protected categories will be
passed over for recall or not recalled
due to job elimination.
While claims of discrimination
based on race, gender, national origin, or
disability are always possible, perhaps
the most potential lies in claims of age
discrimination under the Age Discrimination in Employment Act (ADEA). The
number of workers past the protected
age of 40 in the workforce should be
cause for concern during the recall
process, during job eliminations.
In some cases, it may be a refusal to
recall a worker due to possible Coronavirus exposure to vulnerable employees.
Also, whether accurate or not, older
workers are often viewed as less productive and more expensive than younger
ones. It is also frequently assumed that
they are less able to adapt to or master
changing workplace technology. They
are therefore potentially the first casual-

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ties in a workforce reduction.
The impact of the extended employment and income loss, as well as the
devastation of 401(k) accounts may
force many near-retirement employees
to keep working. Many were already
considering this partially as a result
of the significant losses to retirement
plans incurred in the 2008-2009 recession. Knowing the difficulty of finding
suitable employment when a person is
50, 60, or older, they will desperately
want to hang on to their pre-pandemic
jobs. Therefore, if theirs are the jobs
eliminated the potential for claims of
ageism could be significant.

DISCRIMINATION AT
WORK
In a recent study on "Ageism in the
Workforce" by global specialist insurer
Hiscox, it was noted that of the 400
full-time U.S. workers over the age
of 40 they surveyed, 67% responded
that they planned to continue working
after they turn 66.
The study also noted that workers
55 and older will soon be at least 25%
of the U.S. workforce, with the fastest
growth among those 65 and older. Medical science has enabled many to enjoy
good health and continue working.
Given the real concerns of this segment of the workforce with continuing
to work that were already present
prior to the impact of the Coronavirus
pandemic, they can be expected to
challenge even the appearance of
discriminatory treatment.
While age discrimination claims
pose a particular problem, race, gender,
and disability claims are possible as

RICHARD D. ALANIZ

Senior Partner
Alaniz Law & Associates
ralaniz@alaniz-law.com

well. Employees with medical conditions which could pose a higher risk of
serious illness from COVID-19 exposure,
are entitled to reasonable accommodation for their disabilities under the
Americans with Disabilities Act.
Absent unusual circumstances,
it would not be a basis for a refusal
to recall them to work. In addition to
blatant cases of discrimination, the
on-going focus on racial injustice could
easily claims of race discrimination if
black employees are impacted in greater
numbers than others in job elimination.
The same would be true for gender or
any other protected status.
In order to minimize the potential
for legal fallout from these difficult
decisions on who to recall or retain,
employers must tread cautiously. The
unique circumstances of each case
must be carefully evaluated. Is the
decision based upon defensible objective
criteria, such as needed critical skills? Is
the person chosen to remain employed
truly the better candidate for retention?
Have all reasonable alternatives to
avoid termination been explored and
documented? Does the employee to
be terminated have basis for a claim
of discrimination or retaliation? These
and similar questions should all be
addressed and documented during the
decision stage rather than in response to
a subsequent charge of discrimination.
Anticipating the potential for claims
of discrimination to arise, and being
fully prepared to provide the objective
bases for a failure to recall an employee,
or for termination is perhaps the most
effective means of defending against
any such claims. ■

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