According to the article:

• The median award for all types of employment claims rose a whopping 60% in the past year, from $204,000 to $326,640.
• Employers won only 39% of discrimination lawsuits in the past year, tied for the worst win rate in the past decade.  The lowest win rate (33%) was in age discrimination cases and the highest (52%) was in disability discrimination cases.
• Age discrimination cases had the largest verdicts, followed by disability, sex and race.
• Manufacturing/industrial had the biggest verdicts, followed by government, service/retail and then transportation.
• Employers are better off in federal court, where they won 43% of the cases, versus only 37% in state court.  In addition, the median federal award was 39% lower than the median state award ($164,925 versus $270,000).
• The median settlement amount was the highest in the past decade at $90,000 — a 20% jump over the previous year.

As with any data set, I am always curious to review the details.  I plan on getting a copy of the study and will share whatever summaries and insight I can.  These numbers seem to rebut some rumors I have been hearing about employment law cases losing value in a down economy.

Another interesting observation is that the summary of this data fails to mention retaliation, whistleblowing, and sexual harassment cases.

Of respondents who experienced a serious injury on the job, only 8 percent filed a workers’ compensation claim. When workers did tell their employer about the injury, 50 percent experienced an illegal employer reaction—including firing the worker, calling immigration authorities, or instructing the worker not to file for workers’ compensation.

There are a couple interesting things to note.  My first observation: this study suggests an answer to a common question  – “how could an employer be stupid enough to retaliate against me for filing a workers’ comp claim?”  If retaliation for filing a workers’ compensation claim (actual or perceived) can prevent 96 percent of serious injury comp claims, then instilling fear in injured workers may well enhance an employer’s bottom line.  That’s a scary thought.

My second observation:  vigorous enforcement of workers’ compensation retaliation claims among low-wage earners is VERY important.  I don’t have any data to back up my hypothesis, but I’d be willing to bet that serious work-related injuries are most common among low-wage earners (manual labor, repetitive work, factories, farms, etc.).  If 96% of injured workers are not filing claims, then the workers’ compensation system is broken.

Finally, I have some questions about this study.  I would love to know more about method and details of this study.  I would enjoy seeing how the respondents were selected and how the survey questions were drafted.  Like any report of survey results, I would encourage readers to think critically about what these numbers really mean.

My office routinely reviews EEOC and BOLI files.  In most cases, I suggest having an attorney review the status of an administrative investigation before any findings are issued.  There are some cases where it is advantageous to close the administrative investigation before the agency has a chance to finalize its findings.  This is a rather complex analysis and is something that needs to be considered on a case-by-case basis.

In the lawsuit I mentioned above, which was filed against a Kansas-based staffing agency called Spencer Reed Group, a 55-year-old Caucasian female employee was subjected to differential treatment by her younger male African American supervisor.  The employee submitted a complaint and was fired one day later.

There is not enough information to remark on the strength of the employee’s actual discrimination claims.  However, it appears that retaliation is a real problem for the employer in this case.  Even if the employee cannot prove she was subject to discrimination, there is no getting around the fact that the employer fired the employee within 24 hours of receiving a complaint.  The timing of the discharge is very problematic and is likely to overshadow whatever legitimate, non-discriminatory ground for termination the employer will allege.

This case is also a great example of why the new Oregon whistleblowing law is so important.  H.B. 3162, which was signed by the governor on June 24, 2009, prohibits retaliation against employees for good faith reports of information an employees believes to be evidence of unlawful activity.  (Read bill here).  The law applies to actions filed on or after January 1, 2010, which means that retaliatory conduct occurring any time after January 1, 2009 could theoretically be subject to this new law.   Retaliation has been prohibited in various forms under the Oregon common-law for some time.  See e.g., Galenbeck v. Newman & Newman, Inc., 2004 US Dist LEXIS 9249 at **21-25 (D. Or. May 14, 2004); McGanty v. Staudenraus, 321 Or. 532 (1995); Goodlette v. LTM, Inc., 128 Or. App. 62,65 (1994).  However, the new law will alleviate the need for employees to navigate the nuances of a wrongful discharge claim.

On August 7, 2009, the EEOC sued Decker Transport for pregnancy discrimination.  According to the complaint (download here), Decker discriminated against a 30-year-old Detroit woman based on her sex and pregnancy.  After she informed her employer of her pregnancy after a trip to a hospital emer­gency room the employer.  The company allegedly put her on temporary leave and told her not to return to work until after she “got rid of the problem.” When the female worker refused, the company terminated her employment.  (See EEOC press release here).  I will be keeping up with this case and hopefully posting updates here when they are available.

The EEOC also announced on August 14, 2009 that it has reached a resolution of a Texas pregnancy discrimination lawsuit.  (See press release here) Austin-based Time Insurance Agency (TIA) refused to hire a pregnant female applicant for an administrative assistant position because she was pregnant.  Apparently this woman was selected for an interview and then invited back for a follow-up meeting with a manager of “the department where she would be working.”  At this follow-up meeting, the woman disclosed that she was pregnant.  The company thanked her for being honest and immediately rejected her for hire.  The case settled for $30,000.00 plus a two-year consent decree, which requires the company to institute a new policy and undergo EEO training.

The U.S. Equal Employment Opportunity Commission (EEOC) announced [on July 7, 2009] that Swissotel will pay $90,000 under a consent decree entered by the federal district court here to resolve a harassment and wrongful termination lawsuit brought by the EEOC on behalf of a developmentally disabled adult.

The EEOC charged in its suit that Swissotel violated the Americans With Disabilities Act (ADA) by permitting two supervisors at its downtown Chicago hotel to harass the employee because of his developmental disability. Specifically, the EEOC said, the employee was repeatedly called “retarded” by his supervisors. Further, the EEOC charged, Swissotel then terminated the employee because of his disability.

In addition to paying $90,000, Swissotel is required under the consent decree settling the suit to give ADA training to all of its Chicago-based employees, post a notice of the settlement at its Chicago hotel, and report to the EEOC complaints of harassment or disability discrimination and any actions taken as a result of the complaints.

The lawsuit, entitled EEOC v. Swissotel Employment Services, L.L.C and Swissotel Chicago, Inc., No. 08-5131 (N.D. Ill.), was filed on September 9, 2008. The case was assigned to District Court Judge Dow and Magistrate Judge Nolan. The EEOC filed suit after an administrative investigation managed by EEOC Chicago District Director John Rowe found reasonable cause to believe that the ADA had been violated, and after first attempting to reach a voluntary settlement through the agency’s conciliation process.

For those of you who have been fired or laid off after filing workers’ compensation claims, this study is evidence that you are probably not alone.  26% of survey respondents reported that they were fired or laid off within 1 week of filing a claim!  However, the study does not (and acknowledges it cannot) conclude that the firings and layoffs were because of the workers’ compensation claims.  But take a look at the fact that 25% of those fired or laid off after a claim report that their employers discouraged them from filing a claim.  And, even more shocking, 12% of those not fired or laid off after a claim reported similar pressure.  That means that more than 1 out of 10 respondents’ employers discouraged comp claims.

***Begin Quoted Text (Original Text Here)**

Executive Summary

Whether or not an employee is able to return to work after sustaining a job-related injury is often a test of the effectiveness of an employer’s return-to-work program and the state’s workers’ compensation benefits structure as a whole. Although several research projects have examined the factors associated with an injured worker’s ability to return to work, none have specifically looked at whether an injured worker in fact has a job to which to return.

The purpose of this project is to examine the experiences of injured workers who were fired or laid off after sustaining a work-related injury. In particular, this report looks at the percentage of injured workers who were fired or laid off at some point after their injury, and how being fired or laid off after an injury impacts an injured worker’s ability to return to work.

Key findings are as follows:

Statewide Rates of Injured Workers Who Were Fired/Laid Off After a Work-Related Injury

• Overall, 21 percent of injured workers surveyed reported that they were either fired or laid off after their work-related injury. (It is important to note that this does not mean that these injured workers were fired or laid off as a result of their injuries, only that they were fired or laid off at some point after they were injured.)
• The most common reasons given to injured workers by their employers (according to the workers) for why they were fired/laid off included: the employer said the injured worker was physically unable to perform any of the job duties; because they filed a workers’ compensation claim; some other reason (e.g., company was reorganizing); or business was slow.
• When injured workers were asked to give their own opinion as to why they were fired or laid off after their injury, most believed it was because they filed a workers’ compensation claim; because their doctor said that they couldn’t go back to work; or because their employers did not believe that their injury was work-related.
• Most injured workers (52 percent) were fired more than six months after they reported their injury, while most laid-off workers (64 percent) were let go within six months of reporting their injury to their employer. Interestingly, over one-quarter (26 percent) of laid-off workers were let go from their jobs within one week of reporting their injury to their employer.

Comparison of Injured Workers Who Were Fired/Laid Off with Those Who Were Never Fired/Laid Off After an Injury

In general, there were vast differences between injured workers who were and were not fired or laid off after an injury.

• A much higher percentage of injured workers who were never fired or laid off are currently employed (82 percent), compared to workers who have been fired or laid off after their injury (49 percent).
• Understandably, there were definite differences in how injured workers who were and were not fired/laid off perceived their employer’s support after their injury.
• Overall, the majority of injured workers who were never fired or laid off (66 percent) reported that their employer was either “very” or “extremely” supportive of their efforts to return to work, compared to only 19 percent of injured workers who were fired or laid off after their injury.
• One-quarter (25 percent) of injured workers who were fired or laid off after their injury reported that their employer/supervisor tried to discourage them from filing a workers’ compensation claim, compared to 12 percent of injured workers who were never fired or laid off.
• In general, injured workers who were fired or laid off after their injury tended to receive more financial assistance outside of workers’ compensation benefits (such as Social Security Disability Income or food stamps) and encounter more personal hardships (such as depleting their savings or losing their home) than injured workers who were never fired or laid off.

Factors Associated with Being Fired/Laid Off After an Injury

• Injured workers were more likely to be fired after an injury if: their employers tried to discourage them from filing a workers’ compensation claim; they worked in a physically strenuous job (such as manual labor); they had worked less than one year for their employer; or they were male.
• Injured workers were less likely to be fired after an injury if they were married.
• Injured workers were more likely to be laid off after their injury if: their employers tried to discourage them from filing a workers’ compensation claim; they had attorney representation; they were professional managerial workers; they resided in East or West Texas; they had worked less than one year for their employer; or they were male.

Factors Affecting Return to Work

• Injured workers were more likely to be currently employed if: they worked in a physically strenuous job (such as manual labor); they were male; their employer provided light duty after the injury; or their employer provided on-the-job retraining after the injury.
• It is interesting to note that manual labor is associated both with being fired/laid off and with successful return to work. Possible explanations include shorter duration of some manual labor jobs; plentiful number of manual labor jobs; and/or transient nature of many types of manual labor employment.
• Injured workers were less likely to be currently employed if: they had a back injury; they had attorney representation; their employers tried to discourage them from filing a workers’ compensation claim; they worked for a small employer when they were injured; or they were laid off after their injury.

One important note: based solely on the survey responses of workers who were injured in 1996, this study cannot and does not conclude that these injured workers were fired or laid off because they filed workers’ compensation claims. Indeed, workers are let go for a variety of reasons that do not stem from their injuries. However, employers need to be aware that the choice to terminate leads to additional administrative services that add to claim costs, as well as cost shifting to other social support programs. As a result, these injured workers often are involved in more workers’ compensation disputes; receive more financial assistance outside of workers’ compensation benefits (e.g., food stamps, Social Security Disability Income, etc.) and encounter more personal hardships than injured workers who were able to go back to work with their former employer.

Employers who emphasize return-to-work programs (such as job modification and retraining) not only retain experienced workers but often are able to reduce claim costs as well. Some insurance carriers (though not all) provide discounts to employers who implement safety or return-to-work programs. Although continuity of employment remains the choice of the employer in Texas, there are many benefits — for the employer, the worker, and the system as a whole — derived from maintaining the employment relationship following a work-related injury.

Oregon law prohibits discrimination in employment because of sex. Under statute, “the phrase ‘because of sex’ includes, but is not limited to, because of pregnancy, childbirth and related medical conditions or occurrences.”

Likewise, under federal law, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

That said, there are things an employment attorney will consider in every case that involves a disability.  As I get the time to write about each of these topics, I will provide links below.  Here are some common considerations under the Oregon disability laws:

1. Do the disability statutes apply to this employer?
2. Is the employee “disabled?”
3. Can the employee perform essential job duties with or without reasonable accommodations?
4. Has the employee notified the employer of a disability and/or requested accommodations?
5. Are the requested accommodations reasonable?
6. Has the employer engaged in an interactive process to accommodate the employee’s disability?
7. Has the employer discriminated or retaliated against the employee?
8. How has this negatively affected the employee?

This list is far from exhaustive, but it should give you an idea of some questions involved in evaluating possible disability issues that arise during the employment relationship.

The four principle duties of the Bureau of Labor and Industries (BOLI) are to: 1) to protect the rights of workers and citizens to equal, non-discriminatory treatment through the enforcement of anti-discrimination laws that apply to workplaces, housing and public accommodations; 2) to encourage and enforce compliance with state laws relating to wages, hours, terms and conditions of employment; 3) to educate and train employers to understand and comply with both wage and hour and civil rights law; and 4) to promote the development of a highly skilled, competitive workforce in Oregon through the apprenticeship program and through partnerships with government, labor, business, and educational institutions.

In many cases, BOLI does a great job for employers and employees in general.  However, in many cases, employees need the prompt and assertive action of an attorney.  Especially with the current market conditions, I have heard many reports of BOLI being very busy.  Be sure to stand up for yourself and vigorously enforce your own rights.