Employment Discrimination In Response To Newest Recession

Frank S. Clowney III

The Covid-19 pandemic is still very much active and continues to threaten health and life throughout the United States. But even as we worry about the risks of infection, we also need to worry about the many other issues related to the Pandemic, such as the economic recession and widespread unemployment.

As businesses respond with belt-tightening throughout the economy, business owners will be making some difficult decisions about layoffs and firings. Unfortunately, if not done carefully, these personnel decisions could illegally violate the rights of certain employees. Employment law attorneys across the country are predicting a surge in cases alleging age discrimination and disability discrimination in response to recession-related firings/layoffs.

According to a recent ABA Journal article, this could be very similar to practices seen during the Great Recession of 2008. At that time, companies were pushing out workers who were in their 50s or older. If and when these companies start rehiring, they may be prioritizing younger workers because they are less expensive and, theoretically, less susceptible to the Coronavirus.

There is an argument companies can make for firing or laying off older workers, not because of their age, but because of their higher salaries. That would usually be a legally defensible reason for getting rid of certain employees during a recession. But in cases where older employees are not also commanding a higher salary, that justification goes away. Also, it would not be a defensible reason to discriminate against older workers when it comes to rehiring (as the economy improves).

There may also be an increase in lawsuits and complaints alleging violations of the Americans with Disabilities Act. Attorneys interviewed for the article believe that many of these claims will focus on failure to accommodate workers with a disability, such as those who need to continue working remotely when others have returned to the office. Of course, things may become especially complex for older workers who also suffer from a disability, which is a fairly large demographic of employees.

We will likely find that there are no easy solutions to the economic and employment problems created by the pandemic. But before employers make any major personnel decisions, they need to think through how workers will be impacted and whether their decisions are legally sound.

If you’ve been the victim of discrimination based on age, disability or any other protected characteristic, please contact our firm to discuss your rights and legal options with an attorney.