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By Eve Tahmincioglu
msnbc.com contributor
updated 3/9/2009 3:05:06 PM ET 2009-03-09T19:05:06
EXCLUSIVE

When Hans Bongers was laid off from Tesla Motors Inc. in late February, he began to suspect it was his age that may have landed him a pink slip.

After more than two years as a senior manufacturing test engineer for the San Carlos, Calif.-based firm, he wondered why at age 51 he got a pink slip but his co-workers, all under 40, didn’t.

“I think they’re trying to realign the whole organization to be younger, trying to green up the engineers,” he said.

A Tesla Motors spokeswoman denied the allegations, but Bongers suspects he was discriminated against.

He’s not alone.

Discrimination claims filed with the Equal Employment Opportunity Commission jumped 15 percent in fiscal 2008 to 95,402 — the highest level since the agency opened in 1965, said spokesman David Grinberg. That is up from 82,792 claims filed the year before by workers who believe they were discriminated against because of age, race, religion, gender or other reasons.

During tough economic times, discrimination claims tend to rise because more people are losing their jobs and searching for new ones.

And it could get worse.

Job discrimination claims on the rise
“It's possible we have yet to see the full impact of the recession on discrimination charge filings as the economy continues to spiral downward since fiscal year 2008,” Grinberg said.

He predicts that job bias cases may swell to more than 100,000 in the current fiscal year that began Oct. 1 due to “ongoing mass layoffs and scant hiring, among other factors.”

“There may also be a lag time regarding incoming discrimination cases, as individuals have 180 days to file a charge with the EEOC, and up to 300 days at some state and local agencies,” he said.

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Preliminary figures to be released by the EEOC this week show that claims of age discrimination saw the biggest jump last year, up 28.7 percent to 24,582. Retaliation claims, in which employees believe they were fired or demoted based on their complaints of bias or other issues in the workplace, saw the second-largest increase.

Harsh economic conditions, the need by workers to justify or secure compensation for job loss and the frenzy to cut costs have created a volatile mix in the workplace, said Jim Sokolove, a pro-labor attorney in Newton, Mass.

“Unless people have the sophistication to deal with tough times and large layoffs, there’s going to be problems,” he says, referring to how employers handle work force reductions. “Many haven’t had the experience to say, ‘Hold it a second, you can’t just cut across the board. You have to look at regulations dealing with protected workers.’ ”

Many workplace experts believe incidents of discrimination are probably underreported because many workers are reluctant to take legal action. Some workers fear retaliation or being blackballed from their industry. Others may be asked to waive their right to bring charges against an employer in return for severance pay. And proving bias can be a difficult and long process.

J.D., 54, who was laid off from her technology job in Boston and asked that her full name not be used because she fears she won’t be able to get another job in the industry, is convinced she was a victim of age bias. She consulted a lawyer but decided not to fight her termination.

“My attorney, while agreeing that age was an issue, said that unless they called me names like ‘you old broad,’ there was probably little I could do,” she said.

Workers sometimes assert bias claims out of economic distress, said Sarah Pierce Wimberly, a labor attorney for employers at Atlanta law firm Ford & Harrison. “People lose their jobs, and people get desperate.”

Tough times can lead to poor communication in the workplace, making it difficult for employers to make clear to certain workers that they weren’t doing a good job all along, Wimberly said. “So when they become a target of a layoff because of a slowdown in the economy, they don’t know why they were chosen over the guy in the office next to them. They’re left to guess, what’s different about me? My gender? My color? My skin? Or because I have this disability?”

While many bias charges stem from job loss, some workers believe discrimination is involved when their employers cut hours or pay.

And with more competition for available jobs, some job hunters suspect discrimination when they go on interviews and aren't given an offer.

Workers or job seekers can file claims with the EEOC in such cases.

Bias in the interview process
Indeed, there may be something to their suspicions.

Eden King, assistant professor of psychology at George Mason University, recently completed research that shows individuals are less inclined to hire women or minorities during tough economic times.

A recent study she conducted with co-researchers found that both white men and white women favored a white male candidate over female and minority candidates when told the economy may be on the decline. But when told the economy was on the mend, white men and white women tended to favor a female Hispanic candidate over a white male, a white female and a black male.

"In good economic times, people know they are supposed to support diversity and will tend to hire a minority candidate to get affirmative action points," King said. "But when times are tough, people tend to look out for their own group and isolate outsiders, and that's when discrimination can begin to rear its ugly head."

But others say some discrimination may be inadvertent.

Ignorance of laws and a rush to make decisions may be contributing to the high rate of discrimination claims, said Scott Erker, senior vice president at Development Dimensions International.

The company recently conducted a survey of 3,500 job seekers and 1,900 interviewers about the interview process. The results showed that when interviewers were asked if they knew whether the questions they were asking job candidates were legal, an alarming number — about 35 percent — didn’t know, Erker said.

“Certainly interviewers are under pressure right now,” he said. “When you post a job, you get more candidates than seen in the last 10 years. They also have to manage the business profitably and make the best decision for those few jobs they have. And they need to hire someone who can hit the ground running.”

All these pressures may cause a hiring manager to wonder if a prospective employee who is disabled or who has family obligations would be up to task. That’s when employers can run afoul of labor laws, Erker said.

As for Bongers, he said he was told by Tesla managers that his layoff was part of a "reduction in force" and not related to how he was doing his job.

Tesla spokeswoman Rachel Konrad said his termination was due to "performance-related issues and had nothing to do with his age."

For Bongers, who has not filed a discrimination claim with the EEOC but is considering legal action, it’s all about justice.

“I want to set an example because companies think they can get away with this stuff. I’ve seen this happen to other people and they don’t stand up and say, ‘Hey, wait a minute,’” he said. “I worked hard and got a kick in the butt, a ‘Thank you very much,’ and then out the door.”

Eve Tahmincioglu writes the weekly "Your Career" column for msnbc.com and chronicles workplace issues in her blog, CareerDiva.net.

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