Under Title VII, a plaintiff can seek reinstatement if s/he wins the lawsuit.  But, many plaintiffs do not want to return to their old job.  No matter how much they may have loved their job, they fear returning to a discriminatory environment.  With proper protections, the plaintiff’s attitude might change about returning.  Many – actually

Jurors in San Antonio federal court rejected an African-American’s claim that she was subjected to discrimination.  The EEOC represented Mary Johnson in her suit against A.A. Foundries, makers of components for water wells.  The employee had a picture of a noose she was exposed to, but that was not enough for the jury.  The plaintiff

The Fifth Circuit issued a decision in the case of Turner v. Kansas City Southern Railway Co., No. 09-30558, 2012 US App. LEXIS 6079 (5th Cir. 3/26/12).  See decision.  The opinion discusses the requirements for a circumstantial case of discrimination which relies on comparators.  Four Kansas City employees sued their employer for discrimination under

 It is tempting, when unjustly charged with something at work, to refuse the employer’s instructions.  We need to resist such temptations.  The boss remains the boss until replaced by a bigger boss or by a judge.  An employee at San Antonio Independent School District may learn this lesson the hard way.  Leticia Rivera worked for

The Fifth Circuit overturned summary judgment for the employer in Schroeder v. Greater New Orleans Federal Credit Union, No. 10-31169 (5th Cir. 12/19/11).  The employee was fired after she complained about violations of law and regulation at a credit union.  Mary Schroeder filed suit based on 12 U.S.C. §1790b and La.Rev.Stat.Ann. § 23:967(A).  Sec. 1790

Surina Dixon was hired by Texas Southern University in Houston, Texas to coach women’s basketball.  She quit her job in Tennessee and moved to Texas with her husband in 2008.  She noticed soon after she arrived that the new men’s basketball coach was paid $148,000 while she was to be paid only $75,000.  She complained.

A Dallas jury returned a verdict in favor of the plaintiff in US district court.  In an age discrimination case, the jury awarded the plaintiff employee lost pay and benefits of $500,000, liquidated damages of $500,000, mental anguish damages of $1,000,000, punitive damages of $15,00,000, front pay and attorney’s fees to be determined later by

 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.  


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