Discrimination complaints rise in Hampton Roads

NORFOLK

More people are claiming they lost their jobs because of discrimination.

The U.S. Equal Employment Opportunity Commission received nearly 100,000 discrimination complaints - a record high - last year.

The agency's Norfolk office reported 1,041 complaints, a 10.7 percent increase from 2009.

The EEOC recently reported the data, which cover the federal fiscal year from Oct. 1, 2009, to Sept. 30.

Lawyers for both employers and workers say the primary impetus is the gimpy economy.

"They might not have filed if they had been able to pop into another job right away," said William E. Rachels Jr., a lawyer with Willcox & Savage in Norfolk who represents employers. "They have time on their hands, and it doesn't cost a nickel to go to the EEOC."

Locally, the discrimination category that experienced the largest percentage increase in complaints last year was "national origin," up 45 percent. But the total number of complaints in that category - 58 - was still among the lowest.

Across the country, "retaliation" dislodged "race" as the category with the most complaints. In a retaliation complaint, a worker alleges that participation in a "protected activity," such as an internal human resources complaint or testimony in a lawsuit, led to the firing.

In Hampton Roads, race remained the category with the most complaints in 2010, with 435, followed by sex (296 ) and retaliation (286 ).

Even so, Rachels and Lisa Bertini, a Norfolk attorney who represents workers, said they've seen a spike in retaliation complaints.

Both said that's partly due to the lower standard of proof required in such cases. Plaintiffs must prove that their initial action was one of the causes of their firing but not necessarily the main reason.

Countering such claims can be tough, Rachels said.

"It's like they came in on a white horse," he said. "They did something to carry out the law and protect humanity, and the big, bad employer took action against that activity."

Bertini, principal attorney with Bertini O'Donnell & Hammer, said most people who approach her with potential EEOC complaints don't have a strong case.

"I don't think they're intentionally looking to wrongfully sue their employer," she said. "They're desperate to say, 'What do I have here?' "

She tells them "to move on with their lives. I don't think they need to clog up the system and waste their time."

They don't always listen.

Rachels said he has seen more "pro se" cases, in which litigants represent themselves, without a lawyer. Those claims, he said, tend to be weaker - but not necessarily easier for him.

"It's typically much more difficult for defense counsel to deal with pro se plaintiffs," he said. "Attorneys know what's going on and have a certain code they live by. It can be a risky business to engage in conversation with a pro se plaintiff."

Philip Walzer, (757) 222-3864, phil.walzer@pilotonline.com