Can you win a lawsuit if workplace bullying legislation passes?

Soon legislators in several states will be reintroducing “abusive work environment” legislation that has carried over for another year, many of them copied verbatim from the arguably business friendly Healthy Workplace Bill template (HWB).   For victims of bully bosses passage represents vindication and dreams of having their day in court.  But, just how realistic is that dream?

It might help to look at the outcome of workers compensation claims for mental stress.  John D. Kovac, a workers compensation attorney in New Jersey, points out in his article, Stress Claims As A Remedy For Workplace Bullying, that “…under workers’ compensation law, benefits are provided for work-related injuries. If the bullying does not result in an injury requiring medical treatment, though, there is no remedy…”

If/when the HWB passes it has built into it this same requirement.  In addition, the HWB will require victims to find a way over one more hurdle.  Besides injury, victims will have to prove that their boss acted with malice and intentionally targeted them. Only then will victims be able to meet their bully in a courtroom.

How will courts determine issues about pre-existing conditions and individual sensitivity to stress?  Below Kovac outlines the way workers comp decisions lean on these issues in NJ: (Additional information on filing NJ workers comp claims is included in the full article):

Three Necessary Elements of a Stress Claim

1. Proof of objectively stressful work conditions which the worker reacts to in a stressful manner.

In Goyden v. State Judiciary, 256 N.J. Super 438 (App. Div. (1991), aff’d. 128 N.J. 54 (1992), the Court found that there was a mere subjectively perceived conflict with a supervisor which did not rise to the level of a compensable psychiatric claim. Goyden alleged that he was subjected to vindictive management procedures, particularly a biased and defamatory work evaluation that resulted in major depressive disorder, which compelled him to retire. The court, however, found that the criticism was merited. Goyden also alleged he was stressed by uncontrollable backlog and staff shortages, but the court found that these were not the cause of his stress. The Court noted, though, that work conditions such as backlog and staff shortages are subject to objective verification and thus could form a basis for a stress claim. Id. at 456.

Williams v. Western Electric Company, 178 N.J. Super. 571 (App. Div. 1981). makes clear that an employee’s subjective reaction is not to be disregarded, though it cannot be the sole ingredient of the formula for compensation. Williams also teaches that objectively verifiable work conditions need not be outside of the ordinary work stresses: “The requirements of unusual strain or stress as a causative factor was rejected [. . . ] and we, as an intermediate court, cannot revive that approach.” Id. at 106. Thus Williams specifically rejected the Wisconsin rule, which requires proof that the psychiatric injury must result from “greater dimensions than the day-to-day mental stress and tensions which all employees must experience.” Id.

Walck v. Johns Manville, 56 NJ 522 (1970), involved a reaction to mental stress resulting in a heart attack. The petitioner feared he may lose his job, but this fear was unfounded. After the retirement of his long-time supervisor, the petitioner claimed, he became nervous, tense, and insecure about his work performance and about his ability to hold his job under his new supervisor. But the court found that his anxiety was purely subjective and based on an unfounded imaginary worry as opposed to a reasonable basis in fact. Therefore the court found that where the employee is a worrier who becomes unnecessarily nervous about losing his job and this worry results in a heart attack, it is not compensable.

In Williams v. Western Electric, supra, the petitioner alleged that his work on an assembly aggravated his underlying schizophrenia. However the court found that he had a purely subjective reaction to his job because of his schizophrenia: his diseased mind reacted to merely normal work demands. Therefore compensation benefits were denied.

2. Work conditions peculiar to the workplace (not just common to everyone). Fiore v. Consolidated Freightway, 140 N.J. 452, 468-470 (1994) illustrates “peculiar to the workplace”:

If an employee contracted pneumonia as a result of working in a freezer as a packer, the condition would be a compensable occupational disease because it would be due to a cause which is peculiar to the employment. If the same employee contracted pneumonia as a result of incidental exposure to a fellow employee with pneumonia, however, this might not be compensable because the condition may not be due to a condition characteristic or peculiar to the employment.

Goyden held that merited criticism by a supervisor is common to all occupations and is therefore not peculiar to any particular trade or occupation. Id. at 451. In Williams, the petitioner had preexisting schizophrenia and evidence indicated he was equally irritated by things and people on and off the job. The facts in psychiatric claims brought before the Division must be distinguished from Goyden and Williams.

Cairnes v. City of East Orange held that a layoff or unemployment is not a risk arising out of employment but rather out of the economy and economic forces. A layoff notice is a threat that confronts every worker[4] and is therefore not stress peculiar to the workplace.

3. Objective medical evidence showing that the work conditions were the material cause of the psychiatric disability. Professional analysis in psychiatric claims, as opposed to physical claims, depends upon “analysis of the subjective statement of the patient.” Saunderlin v. E.I. Dupont Company, 102 N.J. 402, 412 (1986). Though subjective evidence requires analysis beyond mere subjective statements and will not be present when the physician simply “parrots” the patient’s complaints, objective evidence of a physical manifestation is not required in psychiatric claims. Id. at 412, 416. The distinction between objective and subjective “is not between physical and mental (or body and mind) but between independent professional analysis and the bare statement of the patient.” Interposition of a professional judgment between a subjective statement and an award of disability does not involve exclusion of the subjective statement: any medical examination “must begin with the [patient’s] subjective statement.” In physical disability claims, medical analysis often goes beyond subjective statements by virtue of clinical and laboratory tests. But in psychiatric claims, diagnostic criteria include descriptions of states of mind “discoverable only through” the subjective statement. Id. at 412-414. Under Saunderlin, Reasoned analysis of the subjective statement of a psychiatric patient is objective within the meaning of N.J.S.A. 34:15-36. Id. at 313-314. But where petitioners saw their psychiatrists only once upon recommendation of their attorneys and the psychiatric reports merely dressed the complaints in “psychiatric nomenclature,” the claims for psychiatric disability were dismissed. Id. at 418-419.

Specific Event versus Occupational Stress

In Prettyman v. State of New Jersey, 298 N.J. Super 580, 594 (App. Div. 1997), the court stated that Walck and Williams do not apply when an alleged psychiatric disability is caused by a specific event rather than a stressful work environment. Wrongly suspected of stealing from a coworker, petitioner was removed from work by the State Police and taken to a station for aggressive questioning. The court applied the “but for” test to determine that the petitioner’s injuries arose out of her employment: but for the fact that she came to be suspected of theft while carrying out her usual duties, she would not have been taken for questioning a few days later. Respondent’s contention, based on Cairns, that police investigations of theft are as normal to the workplace as layoff notices, was rejected along with the argument that the interrogation was a separate event that did not arise “during the course of employment.” Among other things, the court’s distinction in Prettyman between a specific event and a stressful environment suggests that a worker’s predisposition cannot be used to bar specific event claims. Hence the court noted that the “employer takes the employee as the employer finds the employee, with all of the pre-existing diseases and infirmiti[es].” Evidence of the petitioner’s emotional and excitable nature, precluded by the trial judge, was not deemed significant to respondent’s defense. Id. at 592-595.

Limits to psychiatric stress claims apply to fact-specific circumstances and, in some cases such as Cairns, are based on considerations of public policy. These limits, however, do not apply to psychiatric injuries arising from accidents or occupational diseases that have caused other injuries, such as, for example, a machinist depressed after losing an arm or a construction worker depressed due to occupational pulmonary disease. A psychiatric claim in these latter instances would be limited only by Saunderlin, supra, which requires reasoned, objective, professional psychiatric analysis of the patient’s state of mind.

Burden of Proof in Occupational Claims

In Lindquist v. City of Jersey City Fire Department, 175 N.J. 244 (2003), a firefighter with history of smoking cigarettes established that his exposure to smoke from fires contributed in a material way to his lung disease. Lindquist clarifies the standard applicable to all occupational claims in a way favorable to petitioners.

Standard of Proof: “It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee’s disabling injury as a matter of medical fact. Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.”

Bargain Theory: The Workers’ Compensation Act “involved a historic trade-off whereby employees relinquished their rights to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries . . . ” At the ” heart of this ‘original bargain . . . . is the notion that the burden of proof on claimants would be easier . . . under workers’ compensation laws than under common law.”

As this standard applies to occupational claims in general, it would govern occupational stress claims and the related sub-category of occupational bullying claims.

3 Types of Workers’ Compensation Benefits

1. Medical Treatment (Controlled by the Employer). Employee cannot go to his own doctor without getting prior authorization from the carrier—risks personal responsibility for payment in some instances. But the employer’s right to control treatment may be lost if the treatment offered is ineffective or unreasonable. Benson v. Coca Cola, 115 N.J. Super 585 (Law. Div. 1971). See also N.J.S.A. 34: 15-15 providing that if the employer fails to provide treatment the employee may obtain it but the employee must request the treatment. A letter should be sent to the comp carrier or employer’s attorney demanding adequate treatment.

Cure and Relieve. N.J.S.A. 34:15-15 requires an employer to furnish treatment “necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the [worker’s] injured member or organ where such restoration is possible.” But Hanrahan v. Township of Sparta, 284 N.J. Super 427, 436 (App. Div. 1995), held that the phrase “cure and relieve” is not conjunctive: treatment must be provided as long as competent medical testimony establishes treatment is necessary to either cure the worker or relieve the worker of symptoms.

2. Temporary Disability Benefits (“TDB”). Paid weekly (for up to 400 weeks or 7.7 years) at 70% of average weekly wages up to a maximum in 2008 of $742 (SAWW 989.23 x .75). 34:15-12(b) and 34:15-38. Paid until the worker may resume her job or until MMI (is as far restored as the permanent character of the injuries will permit), whichever occurs first. Monaco v. Albert Maund, 17 N.J. Super. 425, 431 (App. Div. 1952).

Restricted Duty: Harbatuk v. S&S Furniture Systems Insulation, 211 N.J. Super 614, 628-629 (App. Div. 1986). If the employer provides full-time restricted employment within the worker’s capacity, temporary disability benefits may be stopped, but not if the employer fails to offer suitable work. Furthermore Harbatuk favorably described an Oregon decision supporting the principal that a worker need not seek easier work in a different field while under active treatment to cure a work-related medical condition.

Med-Temp Motions: Must be filed if a worker has no way of obtaining necessary medical treatment, if there is a dispute over restricted duty, or if the worker is in financial distress and has no other means of obtaining temporary disability benefits. The motion is given priority on the calendar.

Temporary Disability Benefits (TDB). A disabled P can get TDB for six months (at 66.6%) while waiting for resolution of Med-Temp. Motion (fill out Agreement to Repay form). The Department of Labor gets a lien on comp recovery that must be repaid if the comp case is successful.

3. Permanent Disability Benefits. Worker not eligible until 26 weeks (6 months) after MMI or after return to work—whichever is earlier. Must show by objective medical evidence that the worker suffered a loss of functional capacity to work. The award is not for pain and suffering though pain and suffering may be considered if it affects ability to function. Both sides must have permanency exams to resolve the case. Benefits may be for permanent partial total (the worker is not fully disabled) or permanent total (due to injury the worker is unemployable in a reasonable stable job market).

Workplace Bullying: Where’s The Beef?

I believe that if we’re honest with ourselves we can learn some hard lessons from Freedom From Workplace Bullies Week – an event that has been around for at least 4 years.  This year I decided to join in the effort and sponsor Take Action Screenings and offered free DVDs as part of our new initiative to use film to create change.  I’m delighted that the videos were used by advocates in a dozen states – and Australia – in a wide variety of venues.   But, I also recognize that this is a drop in the bucket for what needs to happen on a broader level.  Freedom From Workplace Bullies Week has been in place nearly half a decade.  And, while we applaud the efforts of others scattered around the country who worked hard to garner signed proclamations in 38 cities and one county, it’s important for us to heed this as a wake-up call.   As near as I can tell there are some 30,000+ cities in the US.  That’s not to denigrate any of the work others are doing – it’s merely meant to raise the bar.  Ironically, workplace bullying was more prominently covered by the media in the months leading up to the event.  So, the real question is: why hasn’t this effort really resonated beyond a small cadre of people into a true coalition?   Is it time for a new approach?  Here’s an article from WhenTheAbuserGoesToWork.com that asks just that. Patricia Barnes asks that we start to look in new directions.  In keeping with our mission to foster open and frank discussion, you don’t have to agree with her or me but you do owe it to yourself to become part of the discussion.  READ ON:

Labor Secretary Sleeping on the Job?

With America’s workplace anti-bully movement seemingly stuck in the trenches, perhaps it is time to follow the example of America’s neighbor to the North.

The Canadian province of Quebec amended its Labour Standards Act in 2002 to ban non-discriminatory workplace harassment and bullying. The law, which went into effect on June 1, 2004, also imposes a duty on employers to prevent and stop bullying.

According to one observer, the law was the result of a sustained campaign by Quebec unions, as well as by a non-profit advocacy and resource group for non-unionized workers, “Au bas l’echelle” (in English, “Rank and File”).

This effort resulted in the establishment in 1999 by then Minister of Labor, Diane Lemieux, of an Interdepartmental Committee on Psychological Harassment at Work. The committee in 2001 recommended the government take legislative steps to prohibit psychological harassment.

It is time for unions and workplace anti-bully advocates to call upon U.S. Secretary of Labor Hilda L. Solis to empanel a commission to study the problem of workplace bulling in the United States and recommend new legislation to Congress.

There is overwhelming research that the problem of workplace bullying is epidemic in the United States, affecting at least one in four workers, and that workplace bullying destroys lives and costs American employers billions every year.

Efforts began in the United States almost a decade ago to pass a so-called Healthy Workplace Bill on a state-by-state basis. Thus far, no state has adopted the bill, which is much weaker than Quebec’s legislation.

Meanwhile, the worsening economy has left more and more workers vulnerable to bullying. Not only are there fewer jobs, but the nature of the workforce is changing. More workers today are categorized as “independent contractors” who receive no benefits and low pay. These include home-workers, tele-workers, piece-workers.

Even if one state does step up and adopt a workplace anti-bully bill, it will take decades, if ever, before all of the states do.

*** See Debra L. Parkes, “Targeting Workplace Harassment in Quebec: On Exporting a New Legislative Agenda” (2004) 8 Empl. Rts. & Employ. Pol’y J. 423.

What does “Hot Coffee” and “Workplace Bullying” have in common?

This week, advocates in a dozen states are taking part in “OurBullyPulpit’s Take Action Screenings” to raise public awareness about workplace bullying.  Many are advocates for pending legislation, which in most states is the Healthy Workplace Bill [HWB].  But, the HWB they’re fighting for includes a $25K Cap on our (victims’s) emotional distress portion for those who haven’t lost their jobs, been demoted or suffered any other negative action.  You also have to prove malice and health harm.  The argument by the drafter of the HWB is that a purposely low Cap and high hurdles will help avoid “frivolous lawsuits.”

But, using Caps to avoid “frivolous lawsuits” is the battle cry for Tort Reform and so far much of the success from this effort has been the ability to place low monetary caps on court settlements.  Wisconsin’s controversial Governor just passed a tough reform in his state.

The powerful documentary, Hot Coffee, which premiered on HBO this summer, has fired up the national debate and helps demystify commonly held misconceptions for us laymen. We all want a law to stop bully bosses.  But, each of us has the right to ask that a law reflects our desires and concerns.  Those that want to can easily ask their legislator to strike the Cap out of the bill.  Please read the insightful Atlantic article excerpted below and see the movie:

Everyone has their own spin for so-called “tort reform” laws. Here’s mine: In each instance, state legislators, who are elected largely through corporate donations, have acted to reduce the authority and ability of jurors to render meaningful verdicts against corporations. These lawmakers have interceded to protect corporate interests in advance, via statutes that nullify the facts of individual tort cases, with arbitrary damage caps that are designed more to protect wrongful defendants from liability than protect the victims of their wrongdoing. And the state judiciary, also now being bought and paid for in many states, has followed the lead of the legislative branch in undermining the role of the jury.

No one wants a “frivolous” lawsuit but what exactly is that, anyway? And who is better to decide what is “frivolous” or not? The lawmaker who caps out damage awards based upon the views of the lobbyist who has made a campaign contribution? Or you and your neighbor sitting in judgment on a plaintiff and her case? No want wants an “excessive” jury award but what exactly constitutes “excessive?” Was it excessive for the Gourleys to want the corporate defendants, and their insurance carriers, to pay the $6 million it will take to pay for Colin’s care? Nebraska lawmakers made that decision for the family, in advance, without regard to the facts of their case. Were they better equipped than the Gourleys’ jury to evaluate the definition of the word “excessive”?

Here’s more:

The message has been simple: Corporations are being preyed upon by plaintiffs, trial lawyers, and juries, each of whom are involved in some sort of cosmic conspiracy to transfer wealth from the rich to the poor by virtue of a damage-award verdicts. This propaganda implies that this redistribution of corporate wealth in this fashion is unconstitutional or otherwise unfair. The narrative also pits neighbor against neighbor, juror against juror, and thereby undermines both the letter and the spirit of the Seventh Amendment, which codifies a right to civil trial by jury.

In short, the “tort reform” movement has largely succeeded in making jurors out to be anti-American vengeance-mongers, a mob of citizens unhinged by law or logic and set loose upon innocent corporations. This is all wrong. Tort reform isn’t democratic because the people’s wishes are being expressed through state legislation. It’s anti-democratic because the lobbyists have succeeded in taking away the power of individual plaintiffs and jurors to set damage awards at an amount they feel is just. Remember, no damage award has ever been handed out to a plaintiff who lost a tort case against a company.

How has this marketing campaign been so successful for so long when it’s so obviously built on so many misconceptions about the justice system? Easy. For decades, the media machine dutifully has played along. Indeed, one of the most striking parts of Hot Coffee is its consistent use of old news broadcasts to highlight the extent to which journalists, on the whole, have miserably failed to explain the true nature of “tort reform” to their audience. So many people uninformed about the nature of a jury’s work! So many people underinformed about who benefits and who is burdened by tort reform!

“Jodie’s Law” needs “Teeth” to fight workplace bullying

In 2010 I posted my short documentary “Jodie’s Law” about a young woman who her family alleges committed suicide due to workplace bullying.  This is an update from her Aunt:

We have received tremendous response from your documentary both Nationally and around the world.

We/My family always felt if sharing the heartbreak of our family would help save one life, our efforts and Jodie’s death would not have been in vain. Having taken that step forward, has brought many to us who have told us they were prepared to take their life when they saw your documentary or read our stories, and they pulled back from the brink, saving their loved ones the pain they endured. Normally those accounts have also been accompanied with statements of renewed courage to face their situation, their bully, or find a different job.

There have also been e-mails asking to speak with me directly as they were contemplating taking their lives. With my heart in my throat, I felt I could not dial their phone numbers quickly enough. But through the mercy of God, I reached each caller, listening to the pain of their experiences and the dire choices they believed were in front of them. These callers repeatedly expressed their gratitude; but I too felt grateful, as helping is part of healing ones broken heart. Though there are times I still hold my breath when we interact, most have found their footing and belief in themselves. This does not mean there was a rosy job in front, just waiting for them. The struggles have been long and hard; but joyfully many have gone on to find new and fulfilling careers. For those who continue to struggle, I remind them they are the heros, for they are survivors; as well as hold them in my heart and prayers.

Add “Teeth”to Pending Legislation:

Passage of Healthy Workplace Legislation seems to drag on. Perhaps this is the way it goes when trying to pass a law. I admit I am still a novice to the roll of Citizen Lobbyist. The political outlook in Wisconsin has been very dire. Yet, State Representative Kelda Roys, and Senator Jon Erpenbach, sponsors of the Wisconsin bill, assure me that Jodie’s Law (as we like to call it) has not been lost on them; they are simply waiting for a more favorable political climate.

We, as a family find it discouraging that many working on the legislation insist on calling it a Healthy Workplace Bill as opposed to an Anti-Bullying bill. We think there has been so much news in the media about bullying, that it should no longer be considered an aggressive term when working for a law against it in the workplace. There are few people who are not familiar with the term Bullying when it comes to schools and young people, as the numerous pieces of legislation indicate. Also the idea that the law would have to prove malice seems unacceptable. It is not required in other protected status laws, so it does not seem wise to set a precedent now.

Also, we would like to see a tougher stance to adding some financial teeth if employer negligence is found. I/we have not given up on these bills. We write, call, sign petitions, and anything else we can feasibly do to help them along. I try to keep up with all that is posted on Facebook, writing responses, opinions, bringing up Jodie’s story, etc. and always including the link to your documentary. We are in the process of having a brochure of Jodie’s story printed so we may easily hand it out when people ask about our button that we still wear with Jodie’s picture & caption Workplace Bullying Breaks Hearts

I am chagrined there are times it all gets to be too much for me and my spirit sags and I find myself on the verge of days of depression. Jodie’s Mom encourages me to take a break from it all for now, or maybe for always, as she says Jodie would be proud of what I have accomplished and she would not want to see me ruin my health or lose the joy of life. So I have been giving myself permission to do just that.

Expanding Advocacy Efforts:

We sisters have talked some about focusing our work towards the children and teens anti-bullying issues. Perhaps developing a program geared towards talking with children and teens, as well as parents, teachers, administrative leaders, as well as school boards and city/county board members. Jodie was a leading member of DECA in her high school and we feel the DECA program would be a good place to start. This is all in the talking stages for us, put we do feel at times our efforts would be better spent in that direction. Many States have passed Anti Bullying laws for children and schools, so we may have a better foot in the door. Growing our citizens of tomorrow with an understanding of the damage caused bullying and the benefits of tolerance, may in the end bring the best results. Hopefully their parents would be learning right along with the kids, and then start to stand up for their own rights in the workplace as well.

We have been appalled at the number of suicides among young peopled. In Wisconsin a teen attempted set himself on fire, and in Minnesota two middle-school girls made a suicide pact and hung themselves, all due to bullying. Jodie’s daughter is now 10 years old. These stories have scared me to death! Over dinner I spoke with our little girl about what they are taught in school about bullying. It seems it is discussed frequently, as she had a lot to tell me. I also gave her a book about bullying published by the American Doll company. Because she has a very active 6 year old brother, we never got a chance to get back to the book or the subject, but at least it is a start.  We have not yet broached the subject of suicide. It seems like such a cruel topic to confront and we have not had the right moment to talk with her Daddy about it and what and when he thinks the subject should come up. It is still all very heartbreaking but everyone is heroically carrying on and doing what each of us can to help the other along.

Family Life:

Jodie’s husband is doing a great job in raising the children, though he seems to steer pretty carefully away from any serious discussions with us about Jodie, and all that has occurred, yet relations between all of us are becoming more comfortable. He brought the kids to Florida for the first time since Jodie’s passing. We all went to Disney World & then spent Thanksgiving at Grandma Jean (Jodie’s Mom).

He has his hands full keeping the kids clothes clean, as well as the house, seeing their home work is done, fixing their meals, getting them to school and to bed, girl-scouts, religion classes, swimming, soccer, T-ball, and even coaching their teams. He loves the children very much. I think I can safely say they are his world, and the kids feel the same. Jodie’s daughter is very protective of her brother and watches over him and her Daddy like she is a little mother – sometimes more than either male of the house appreciates.

Grandma Jean (my sister & Jodie’s Mom)  & I had a wonderful but short visit with them in August. We spent two nights at their place, where among other things we played salon and Jodie’s daughter gave us facials and did my hair (!) and her brother painted my fingernails and make-up. I only regret we did not take pictures of the end results! We …spent lots of time with their Auntie Lisa (Jodie’s sister in your video) and a lot of time in the swimming pool. It is always hard to say goodbye.

It is important to note that no single factor leads to suicide and Jodie’s employer did not respond to an offer to participate in the documentary.

Workplace Bullying may be a thing of the past — for legislators only!

Ever since the landmark workplace bullying case was upheld by Indiana’s Supreme Court,  the Joint Commissions has required that Hospitals address civility issues as a requirement in their accreditation process.  Many states require lawyers adhere to civility codes for conduct in the courtroom.  Now, according to NewHampshireSentinel.com, Rep. Susan Emerson, R-Rindge, is proposing a bill to stop bullying among legislators in her state capitol. Continue reading

EEOC Takes Aim at Age Discrimination!

It’s important to know your rights…in many cases bullying IS already illegal

[Press Release from EEOC]

EEOC Explores Plight Of Older Workers In Current Economic Climate

Commission Hears Poignant Testimony of Employee Discharged After 31 Years, Panelists Discuss Scope of Age Discrimination

WASHINGTON— At a meeting held today, the U.S. Equal Employment Opportunity Commission heard testimony that age discrimination is causing the nation’s older workers to have a difficult time maintaining and finding new employment, a problem exacerbated by the downturn in the economy. The number and percentage of age discrimination charges filed with the EEOC have grown, rising from 16,548 charges — 21.8 percent of all charges — filed in fiscal year 2006, to 22,778 —24.4 percent — in fiscal year 2009.  Continue reading