Recently, I wrote about a study showing that employers are losing more discrimination cases this past year.  This was a study published by Manpower, a human resources firm.  Yet,  a separate study by two Cornell law school professors published in the Harvard Law & Policy Review shows just the opposite, that plaintiffs in employment cases are doing worse.  These two professors are the same persons who prepared a study several years ago showing that employment plaintiffs generally do worse in federal court than other types of plaintiffs.  Well, now, in this latest study, based on data from 1970 to 2006, we see that within the last five years, the number of employment cases has dropped dramatically in federal court.  In 2001, employment cases accounted for 10% of all federal lawsuits.  In 2006, that number dropped to 6%.  I am sure that drop is due to the ever increasing use of summary judgment in employment cases.  

For example, this study finds that while defendants (employers) and plaintiffs (employees) appeal about as often as each other, the defendant is ten times more likely to win on appeal.  Too, the pretrial reversal rate is far higher for defendants (30%) than for plaintiffs (10%).  "Reversal rate" refers to those times when the lower court finds in favor of one party or the other.  If you are a defendant, you have a 30% chance of reversing the district court.  As a plaintiff, you have only a 10% chance of obtaining a reversal.  Pretrial disposition refers primarily to summary judgment and motions to dismiss.  So, when motions for summary judgment or to dismiss are granted, the employer has a 30% chance at getting the decision reversed.  While, the plaintiff has only a 10% chance at reversing the adverse decision.  

Looking at the reversal rate after a trial has occurred, the disparity becomes more clear.  Defendants have a 41% chance of obtaining reversal.  While, a plaintiff (employee) only has a 9% chance of getting the trial result reversed.  Thus, the authors point out, the federal system heavily favors the defendant (employer).  

As the authors explain, this result is counter-intuitive.  Discrimination cases by definition rely on evidence of intent and private conversations.  One would expect reversal of a jury decision to be rare.   Or, one would at least expect that reversal of a jury decision to be about the same for both parties.  Since, trial outcomes in discrimination cases depend so much on credibility determinations by a jury.  Such cases ought to be virtually immune from appellate review.  The appellate judges were not present at trial to observe witness testimony.  The authors believe the best explanation for this apparent discrepancy is that the federal judges have an "attitudinal" bias against such claims.  That "attitudinal" bias would certainly comport with my experience with federal appellate judges.  They are, on the whole, remarkably skeptical of discrimination claims.  

But, so are federal district court trial judges.  They are on the whole just as skeptical of discrimination claims.  The authors note that federal trial level judges are skeptical toward discrimination claimants.  Discrimination plaintiffs are among the least successful sorts of claimants in federal court.  

The data from 1998 to 2006 shows the following success rates for plaintiffs: 

ADA – 9% (Manpower study: employer wins 52%)

Title VII -11%

ADEA -12% (Manpower study: employer wins 33%)

FMLA -20%

The Manpower study I referenced on Jan. 6, 2010 does not describe the source of their data.  This Cornell study published in the Harvard Law & Policy Review drew from federal numbers.  Federal district clerks keep painstaking detail regarding each lawsuit filed.  So, the Cornell study is based on solid data.  The Manpower study relies on data collected by Jury Verdict Research.  My experience with verdict research firms is that they rely on information regarding cases provided to it on an ad hoc basis on its own or from other sources.  The information is still relevant when compared to prior years.  But, JVR’s data is probably not as complete as federal systemic data.   So, the Cornell study is scientific, while the JVR study probably is not.  It is fair to say that federal courts remain a very inhospitable place for discrimination claimants.  

Continue Reading Employees Fare Worse in Federal Lawsuit Study

 EEOC statistics have been released.  Total charges for FY 2009 were 93,277.  That number is down slightly from FY 2008 when a total of 95,402 charges were filed.  But, recall that prior to 2008, the EEOC had never received more than 90,000 charges.  The previous highest number was 84,000 in one year.  The high number of charges are almost certainly due to the down economy.  People losing their jobs are always more upset.  Too, in mass layoffs, many employers take that opportunity to get rid of persons who were perceived as marginal.  Looking at the number of charges filed is helpful, since the EEOC is generally good at screening out cases lacking the minimal requirements to prove a case of discrimination. 

Charges filed alleging national origin, religion, and disability reached record highs.  Charges filed alleging age discrimination were the second highest ever.  

Data show that the EEOC resolved 85,980 charges.  But, that is rather meaningless.  "Resolve" means everything from finding a violation and then reaching a settlement to simply issuing a right-to-sue letter.  To its credit, the EEOC did receive $294 million, a record amount through administrative enforcement and mediation.  Administrative enforcement and mediation refers to cases settled while the charges were still pending with the EEOC.  They have vastly improved the quality of their mediation services, at least here in the San Antonio region.  

The EEOC did reach a "merit resolution" in 17,428 charges.  Merit resolution refers to charges which assigned fault and/or reached the conciliation stage (which also requires some finding of fault).  So, out of 93,277 charges, only 17,428 resulted in any sort of finding.  That amounts to 18%.  

The EEOC filed 281 lawsuits last year.  That means across the country, they filed 281 lawsuits.  In my experience, they file very few here in San Antonio.  

 According to a recent study by Manpower and Jury Verdict Research, employers won only 39% of jury cases in the past year, tied for the lowest percentage in this decade.  The lowest win rate was 33% for age cases and the highest win rate for employers was disability cases with 52%.  The median settlement amount was $90,000.  But, before my current clients see this and go bonkers, I am sure that means there was some very large amounts raising that amount so high.  Most employment cases settle for less than $20,000 in my experience.  

Why is the win rate for employers lower this past year?  Russ Cawyer advances various reasons, all of which make sense.  With the downturn in the economy, many potential jury members are out of work.  That sort of experience makes discrimination and employment issues more credible.  Mr. Cawyer mentions that in two recent jury trials, many more potential jury members were out of work or had a close family member who was out of work.  And, as he adds, in a down economy, many employers will take their chances at trial instead of trying to settle the case.  

Russ Cawyer, a management side lawyer, sees this as part of a trend favoring employees over employers.  Perhaps, but like everything, trends come in cycles.  

 Texas Workforce Commission is supposed to enforce the Texas statutes regarding wages.  A statute is a law passed by the state legislature.  TWC provides a summary of the Texas Payday Statute at: http://www.twc.state.tx.us/ui/lablaw/pdlsum.html.  Many employees want to know when must an employer pay the last paycheck?  Frequently,  many employers withhold the last paycheck until Joe Employee turns in his tools, pays for a damaged rear view mirror, turns in her uniforms, or whatever.  

But, the employer cannot do these things.  An employer cannot hold the final paycheck until an employee turns in tools or whatever.  The employer must pay the last paycheck within six days of the last day.  Texas Labor Code Art. 61.014.  But, this law has no real teeth.  The employer can incur a criminal penalty for missing this deadline.  But, few District Attorney’s would have the time to prosecute what they see as a relatively minor crime.  

 Unlike many states, Texas has no statute or regulation addressing break periods in the work place.  So, in Texas we fall under the federal regulations.  Under 29 CFR Sec. 785.19 (http://www.access.gpo.gov/nara/cfr/waisidx_09/29cfr785_09.html), genuine meal periods are not work times.  The employee must be completely free from performing any duties during a genuine meal period.  For example, an employee required to eat at his desk is not truly relieved from his duties.  A meal time is not required. 

Contrary to what some people say, there is nothing in the federal regulations requiring a break period (outside of the meal break).  For example, when I worked in a warehouse many years ago, I was told we were entitled to a 15 minute break twice a day.  There is no such requirement.  But, federal regulations do provide that many employers provide such a break, 5-20 minutes long, to promote efficiency.  Such breaks are considered paid time.  See 29 CFR Sec. 785.19.  

 Well, it must be getting ready to snow in July, because the Texas Supreme Court issued a pro employee decision.  See Mike Maslanka’s post.    In a 9-0 vote no less, they found in favor of a group of employees who stuck around when an employer was being sold.  Management had told the employees that if they stayed until the comnpany was sold, they would receive 5% of the sales price.  They stayed.  But, the company reneged and refused to pay them the 5%.  The employees sued on basic contract principle: if you take action based on a promise, then that promise becomes a contract.  The company defended on the basis that the employees could have terminated the employees at any time.  Thus, the promise was illusory.  

The Texas Supremes disagreed, finding that if the employer’s argument was accurate, then any wage, salary or pension would be illusory.  So, yes, if an employer promises a percentage of the sales price, and the employees rely on that promise, then that promise becomes an enforceable contract.  Venegas v. American Energy Services (Tex. 12/18/09).  

 The City of San Antonio is spending $3 million to  make the Riverwalk accessible to wheel chairs.  Title II of the ADA requires that public places be accessible to persons with disabilities.  The Department of Justice supposedly enforces Title II.  The EEOC enforces a separate part of the ADA.  It is long past overdue that the Riverwalk be fully accessible.  But, most sidewalks in the older parts of all US cities are still not accessible.  See DOJ summary.   

 Five members of a jury "friend" each other during a jury trial.  In another trial, one involving murder, jury members look up key scientific terms on Wikipedia during deliberations.  The jury looked up terms helping them understand how blood settles, an important issue in the murder trial.  Court personnel found the results of the research after the trial was complete.  Of course, a jury is supposed to only consider the facts and information presented during trial.  They are not supposed to do their own research.  Both instances occurred in Maryland.  That state is now considering adding jury instructions to specifically prohibit online research by jury members.  

In the Facebook incident, five jury members formed a clique, allegedly upsetting the jury dynamics.  That is a problem since most jury instructions tell the jury they cannot discuss the case until both sides have rested and concluded their presentation of evidence.  One of the five apparently heard suggestions on how the trial should turn out from an outside observer.  One of the parties to the trial is seeking a new trial.  So, yes, forming a clique too early would be a problem.  See ABA Bar Journal for more info.