I talked the other day about a recent book from the University of Chicago Press: Rights on Trial: How Workplace Discrimination Perpetuates Inequality. See my poor post here. The authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace.
Employment cases are difficult for the employee. I have mentioned a couple of studies about the success rates for employment cases. See my prior posts here and here. Now, we have another study. In Rights on Trial: How Workplace Discrimination Perpetuates Inequality, the authors went to federal records and interviewed individual plaintiffs to…
Yes, sexual harassment cases are often rejected by the courts, i.e., by the judges. Over the past several years, the courts have developed a test for just how bad the harassment is (or is not). The legal term is “severe or pervasive.” The harassment must be severe or pervasive. See my prior posts here and…
Alex Colvin of Cornell University has published one of the first empirical studies of arbitration in the employment context. He looked at the reports submitted by the American Arbitration Association, one of the leading providers of arbitrations, in California. The study looked at 3,945 arbitrations, of which 1,213 were decided by an arbitration award. See…
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%)
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. …