Two Atlanta area lawyers researched discrimination cases in the Northern District of Georgia.  They found among the cases filed in federal court, 80% were dismissed without a trial.  In a report published in the Oct. 20, 2013 edition of the Atlanta Journal Constotution, the lawyers looked at 181 discrimination cases alleging race, sex harassment, national origin, and pregnancy related discrimination.  Nationally, discrimination cases are dismissed about 70% of the time, according to the report. 

In one case, an hourly worker at Bojangles, 17 years old, was repeatedly told by a male worker in graphic terms how he wanted to have sex with her.  The female worker, Morgan Cramer, reported it to her boss, who said the male worker was harmless.  One day, the male co-worker pinned Ms. Cramer to the wall, tried to kiss her and groped her crotch.  Again, she reported it.  Again, the manager was unconcerned.  The young worker quit and later filed suit.  The court dismissed the case on summary judgment saying no reasonable jury could conclude this was a hostile work environment.  The court noted that the woman suffered no more harassment after that last act.  Ms. Cramer complained three days after quitting, at which point the employer investigated.  The man was eventually terminated.  The court said under these facts, no reasonable jury could conclude this was a hostile work environment.  The young worker appealed, but the decision was upheld. 

The problem with a court arriving at this conclusion is that whether a workplace is "hostile" is a fact question.  Fact questions should be resolved by a jury.  The court is saying that no "reasonable" jury could conclude these facts support a finding that this workplace was hostile to female workers.  But, even in making that thresshold finding, the court is essentially making a fact finding.  And, surely, many reasonable jurors could conclude this was a hostile work environment.  

The reporters for the Journal Constitution also found cases in which managers and owners routinely used the n-word in referring to African-American workers.  Yet, the court still granted summary judgment.  

As one plaintiff lawyer commented, it is almost as if the courts are imposing a higher burden on discrimination claimants.  There is almost a presumption that discrimination cases lack merit and need to show more than other cases.  Ms. Cramer says today that she feels like she was robbed when her case was dismissed without a trial.  Yes, indeed.  That is exactly what many of my clients have said.