A recent study shows a 37 percent drop in employment discrimination cases from 1999 through fiscal year 2007. A worker prevails in a jury trial 29 percent of the time. At a judge trial it’s 20 percent.
If a victorious verdict is appealed, there is a 41.1 percent chance that it will be reversed. A verdict in favor of employers is overturned only 8.7 percent of the time. That gap is the largest in any case category in the federal courts, according to Stewart Schwab, dean of the Cornell University Law School.
Schwab and Kevin Clermont, a professor of law at Cornell, conducted the study of workplace discrimination cases in every district and appellate court for the fiscal years of 1979 to 2007. Their work was published in the winter 2009 issue of Harvard Law & Policy Review.
The study was released at a September 18 event at the National Press Club in Washington. It also was one of the subjects of a subsequent Senate Judiciary Committee hearing.
The number of employment suits peaked at 23,722 in 1998 and then dropped to 18,859 by 2005. Schwab argues that the downward trajectory is not a reflection of diminishing bias in the workplace, but the result of workers being discouraged about their chances of success in federal court.
By contrast, his study shows that the number of charges filed at the Equal Employment Opportunity Commission totaled 80,680 in fiscal year 1997 and 82,792 in fiscal year 2007.
The reason that plaintiffs fare so poorly in the federal courts is that judges put greater demands on plaintiffs, according to Schwab. Appellate-level judges view juries as being pro-plaintiff and, therefore, are more inclined to overturn their verdicts, he says.
The problem has been caused by the appointment of conservative ideological judges by President Bush, according to some advocates. He has placed 315 of 820 judges on the federal bench. Only 44 vacancies remain nationwide.
"The significant effect of the Bush judges is to advance a pro-business agenda at the expense of American workers," says Wade Henderson, president and CEO of the Leadership Conference on Civil Rights.
The trend of appointing judges with right-wing views started during the Reagan administration, says Nathaniel Jones, a former judge on the 6th Circuit Court of Appeals.
"The assault upon civil rights remedies that has led to the decline in employment cases was by design," Jones says. "It was not accidental."
Cyrus Mehri, a partner at Mehri & Skalet in Washington, says that plaintiffs’ lack of success does not make sense, because only the strongest cases go forward to trial.
Employees are "very loyal to their companies and only as a last resort do they seek counsel," Mehri says.
When even the most highly vetted complaints fail at such a high rate, "it imperils our civil justice system," Mehri says.
But Eric Dreiband, a partner at Jones Day in Washington and a former EEOC general counsel, provides a more benign explanation for why the number of employment cases has fallen: The EEOC has expanded efforts to settle suits before litigation is necessary.
Between 1999 and 2007, the EEOC sent 98,000 cases to mediation and resolved 68,000 successfully, Dreiband says. In 2007, the agency recovered $290 million for plaintiffs without going to court.
Workers may be turning their attention away from discrimination cases and focusing on wage and hour litigation, which has expanded dramatically in the past few years, employer-side attorneys say. These often become class-action cases.
This area of the law has grown in popularity because a 10-minute discrepancy on a time card, multiplied over thousands of employees and multiple years, can result in lucrative payouts, says Doug Seaton, a partner at Seaton Beck Peters in Minneapolis.
"The plaintiffs take advantage of quirks in the law to gin up lawsuits out of tiny intervals of time that no employee or employer would care about," says Seaton, a member of the Worklaw Network.
Wage and hour claims are the fastest-growing cases in the federal courts, according to Seaton.
"The idea that there are villainous employers out there trying to find ways to chisel employees is mistaken," he says. "Every employer is violating the wage and hour statute because it is so archaic and complicated."
It’s not the wage and hour actions, however, that have drawn the most attention in recent years. Plaintiff advocates have excoriated conservatives on the Supreme Court for a 2006 decision against Lilly Ledbetter, a former supervisor at a Goodyear Tire & Rubber plant in Alabama.
The court held that Ledbetter, who alleged that she had been paid less than her male counterparts for nearly 20 years, did not have a valid suit because she didn’t file her action within 180 days of the original discriminatory action.
Ledbetter argues that she didn’t know what her colleagues were making until someone slipped an anonymous note in her mailbox at work, many years after she had started receiving paychecks smaller than those of her male co-workers.
A bill approved by the House but stalled in the Senate would set the statute of limitations at 180 days from each paycheck. Opponents say that the measure is a sop to trial lawyers and would force employers to defend stale cases.
Although the Supreme Court under Chief Justice John G. Roberts Jr. has ruled in favor of employees in several retaliation cases, the Ledbetter result is often highlighted by liberal court watchers to assert that conservative judges are bad for workers.
The court majority in Ledbetter demonstrated a "failure to understand the American workplace," Mehri says. Supporters of the decision say the court was respecting statutory guidelines.
The nonpartisan way to remedy the ideological bent on the bench is to cast the net more widely when nominating judges, according to Mehri. The emphasis should be on appointing people with diverse backgrounds who are familiar with the daily challenges most people face.
"There is an out-of-touch jurisprudence because [judges’] life experiences are so narrow," Mehri says.
Submitting a new slate of judges starts at the White House. "The presidential election will determine the future of the federal courts for perhaps generations to come," Henderson says.