Recent data compilations suggest a potentially disturbing trend for employers.  Employment discrimination lawsuits (based on such protected characteristics as race, sex or age) are on the rise.  One source recently reported 14,236 civil rights lawsuits in the calendar year 2008 (compared to 11,307 for 2007).  This increase comes after a five-year decline in the number of civil rights lawsuits filed.  It is difficult to say whether this increase is due to greater litigiousness by employees or is merely a reflection of the larger economic picture.  With more people losing their jobs, it is not surprising that more job-based lawsuits are filed.  Employers need to be aware that terminations which are part of a reduction in force (RIF) can still be attacked as discriminatory, so employers should ensure that there is a clear business reason for each employee’s inclusion in a RIF.  

In 2009, experts are predicting more lawsuits based on the Americans with Disabilities Act (ADA) in light of its recently expanded scope. Recent amendments have increased the number of conditions covered by the ADA and will expand the universe of individuals who will be covered by the ADA.  

By comparison, the number of cases based on violations of the FMLA declined in 2008, continuing a five-year trend in that direction.  Not only did the overall number of cases decline, the number of cases in which a violation was found to have occurred also declined.  However, given that the new FMLA regulations impose new and heightened notice requirements on employers, as well as an entirely new type of available leave, we may see an increase in FMLA-based lawsuits in 2009.  Employers should educate themselves and their managers about the new FMLA requirements to reduce the risk of violations and litigation.