Friday, February 1, 2008
The Jewish Daily Forward has an interesting article by Kathleen Peratis concerning the enforcement of civil rights in this country. Here are some highlights:
Lately, however, a new and alarming flaw has emerged, a flaw that urgently warrants response: Although the number of employment discrimination cases filed has nearly tripled in the last 10 years, the amount of public information about them has dwindled to practically nothing. About 70% of employment discrimination lawsuits are settled — less than 4% actually go to trial — and nearly all settlement agreements require strict “confidentiality,” meaning no one can reveal the terms of the settlement, including the amount paid to the plaintiff.
Thus, an important aspect of civil rights enforcement has become invisible. A weak system has become a secret system, and the public interest is suffering. None of this was supposed to happen.
“Employment discrimination statutes were not envisioned to promote secret settlement,” says Minna Kotkin, a law professor at Brooklyn Law School who has studied the issue. “The whole thrust of the legislation was that, by facilitating employee suits, discrimination would be brought to public attention and the litigation process would serve to deter other employers from similar conduct.” . . . .
The problem has an easy fix: Prohibit the parties from withdrawing or dismissing any employment discrimination lawsuit unless the settlement agreement is filed as a public document with the court. Of course, as with all rules, there could be exceptions for good cause shown, but the default position would favor openness.
Indeed, Minna Kotkin (pictured above) has led the charge to bring some visibility to the invisibility of these settlements so that the public interest aspects of employment discrimination law can be vindicated. Minna's articles in this area are Invisible Settlements, Invisible Discrimination and Outing Outcomes: an Empirical Study of Confidential Employment Discrimination Settlements.
Hat Tip: Jack Sargent