Friday, February 1, 2008

Outing Employment Discrimination Case Outcomes

Mkotkinsmall 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


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In the article, the author states that scholars disagree whether the number of settlement agreements will be reduced if confidentiality was disallowed. Scholars may disagree (and even the author doesn't seem to but much effort into defending the idea) but actual employment attorneys will all agree that the number will be significantly decreased.

Plaintiffs who believe they are bringing claims that have merit, but don't have great supporting evidence, often receive settlement amounts now. But would the general public actually believe that someone received $20k, $50k or more, believe the company didn't actually violate the law? Perhaps the person was in fact harassed, but did not effectively notify the company. Legally, the company is not liable, but in practice, will often offer a decent settlement, in exchange for confidentiality. If the company is going to have to pay the settlement amount, and face public criticism and backlash (possibly costing much more than the settlement amount) - why not litigate the case? All things considered, it may now be cheaper to litigate than settle.

Companies that now have a policy to settle all or substantially all of their employment claims (they do exist) will revisit these policies, to the detriment of people filing frivolous claims, as well as those with meritorious claims, but poor evidence or shoddy representation. Pro se plaintiffs will now, instead of receiving settlement, lose in court or more likely on motion. I have not had a pro se case where the plaintiff understood discovery obligations (mine or theirs), how to use interrogatories, or would have much of a chance at all before a judge. To settle those claims publicly would invite every terminated employee to file a discrimination suit pro se and hope for a windfall.

The author seems to be offended that a company which has had a discrimination claim filed against it, has an option of resolving the issue without admitting liability, short of a verdict by a jury.

Who benefits from this scheme? If she would like to know what employment cases settle for, she can talk to any number of employment lawyers who will speak generally on the subject. She seems more concerned that when she hears the initial claim, she doesn't get to hear how the company suffered in response. Which may be viscerally satisfying, but doesn't justify the effects on everyone else.

Posted by: Tor | Feb 1, 2008 10:42:18 AM

I have a current case with the EEOC hiring case where i was discriminated against when a disability was revealed after the conditional offer of employment. First the eeoc was excited about my case saying its a 365,000 case. After the deposition they made a 180 and I was ridiculed on the phone for crying at the deposition and she said I lied on my application the medical part of the application that asked illegal questions reagrding my disability. In fact the question actually asked if I had Psycholoical issues or saw a psychiatrist. I thought they could not ask these questions?

Anyway I cannot beleieve how nasty the EEOC was to me. I thought they were supposed to be protecting my rights. When I told them I did not want to settle they got more angry with me. I did nothing wrong here. i was the one discriminated against and now I am the enemy. Whats going on at the EEOC???

Posted by: Richard Rydza | Dec 15, 2009 4:17:47 AM

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