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The States vs. the Feds
According to a new report that analyzed data from federal court records, workers bringing employment-discrimination lawsuits increasingly fare poorly in the federal courts. What are the key factors behind this trend? Can it be the result of more conservative judges being appointed during the Bush administration? Are plaintiffs' attorneys filing more cases in state courts, finding those courts friendlier in workplace-discrimination cases? Is an increase in binding arbitration reducing the number of federal bias cases going to trial? Or, are employers merely doing a better job in training and policymaking on the discrimination front? The answer is probably some of all of the above, according to the report authors and employment attorneys. The report, entitled Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, was released in late September by the American Constitution Society for Law and Policy, a "progressive legal organization," based in Washington, and published in the Harvard Law & Policy Review. Studying data from the Administrative Office of the United States Courts, authors Stewart Schwab, dean of the Cornell Law School, and Kevin Clermont, law professor at Cornell, found that "the federal courts disfavor employment-discrimination plaintiffs, who are now forswearing use of those courts." In the study, Schwab and Clermont conclude that they've "unearthed an anti-plaintiff effect that is troublesome." The study reports that, as a result of the likelihood of unfavorable rulings in employment-discrimination cases, more employees are declining to bring actions in federal court. Over eight years, from 1999 to 2007, there has been a drop of 37 percent (from 23,722 to 15,007) in the number of cases brought by plaintiffs. Other key report findings include: * Employment-bias cases fare much worse than other types of cases. Between 1979 and 2006, the win rate for plaintiffs in job-discrimination cases in the federal court system was 15 percent, in contrast to 51 percent for non-jobs related cases. * Employment-discrimination plaintiffs are not likely to experience any greater success at the appeals court level. Data reveal that plaintiffs who lose at trial achieve reversals in less than 9 percent of the cases. In contrast, defendants who lose at the trial court level are granted reversals in 41 percent of their cases. "Perhaps the plaintiffs' lawyers are now recognizing their low chances for success in federal court and thereby becoming less inclined to venture into that court system," says Schwab, adding that he is not completely sure what the reasons are for the trend, but he suspects a number of bias cases are being brought in state courts rather than federal courts. "But due to the patchwork of state laws and legal reporting, there are no corresponding statistics for job-discrimination cases going to trial in state courts," he says. "This has been the case for the better part of the last 10 years," says Daniel Levine, a shareholder at Shapiro, Blasi, Wasserman & Gora, a Boca Raton, Fla.-based law firm. "There is a belief that state court judges are less likely to throw out these cases on summary judgment and allow them to proceed to trial for fear of being reversed on appeal." Levine says that federal judges are less concerned about this because their "reversal rate" matters less to them than their state-court counterparts, who may have to face re-election bids where challengers can point to a state court judge's record on appeal (i.e., how often he or she is reversed). Federal judges, on the other hand, are appointed for life. "There is also a perception that state court juries are less conservative in terms of jury verdicts and damage awards," he says, adding that because most of the anti-discrimination legislation is federal, the federal judges see a lot more of these cases and understand the nuances much better than state court judges. For that reason too, federal court judges are not hesitant to toss cases if they do not believe they have merit. Schwab says another factor might be the growing use of binding arbitration, which employers are using more and more to resolve discrimination cases in the workplace. "Whatever the causes, there has been a dramatic decline in job discrimination cases going to trial in federal courts, after a spectacular rise in the decade before," says Schwab, noting the fact that federal job-discrimination cases shot up from 8,303 prior to 1991 to the 23,000-plus number by 1999 ¿ a 286 percent increase! "That explosion of employment-discrimination cases no doubt resulted from several factors," Schwab says. One prime reason could be the Civil Rights Act of 1991, Schwab says, which made Title VII law more favorable to plaintiffs, increasing the propensity to sue. Changes in that 1991 law included a right to jury trial and the availability of compensatory and punitive damages. Christine Howard, an employment law attorney in the Tampa, Fla., office of Atlanta-based Fisher & Phillips, says there are several reasons for the trend, including her belief that the plaintiff's bar is taking less discrimination cases, preferring "wage hour" cases (which deal with compensation fairness and other pay-related issues). Another reason she offers is that court rulings on the American with Disabilities Act caused a decline in those types of cases, though, she notes, that could change with more expansive ADA amendments currently under consideration. Howard also believes arbitration also has affected the decline in federal workplace discrimination cases, though she adds there also are bills pending that would restrict the use of ADR in the workplace. Howard believes one other factor in the decline of federal discrimination cases is that the time, effort and money employers have poured into training and policy development are finally coming to fruition - meaning there is simply less discrimination taking place. In the Cornell study, however, Schwab also considered that there could be less discrimination occurring, but, he notes, the number of EEOC complaints filed has remained constant when compared to the federal court case decline, which could indicate otherwise. "Employers are certainly trying," Howard says. "There are going to be claims, of course, but having those preventive steps in place are half the battle. Over the past 18 years, from what I have seen, employers have gotten the message. Not all, but most of them have deployed progressive training and education programs, along with serious, effective policies, and internal grievance and mediation programs."
September 29, 2008 Copyright 2008© LRP Publications |
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