Saturday, September 27, 2008

Federal Court: The Plaintiff-Employee's Worst Enemy?

Justice If you represent the employee, you will go hungry!"  This joke, or some variation of it, has been heard time and time again.  But as often realized, sometimes jokes euphemistically reflect reality.

This past week, the U.S. Senate Judiciary Committee heard "extensive" testimony on the increasing struggles employees face in achieving workplace equality.  Federal courts have increasingly refused to hear employment discrimination claims.  According to Senator Patrick Leahy (D-Vt), statistics show that the Federal Courts of Appeal are five times more likely to overturn an employee's favorable trial verdict against her employer than to overturn a verdict in favor of the employer.  The Ledbetter v. Goodyear Tire & Rubber Co. decision is an example of this misfortune.  At trial, Lilly Ledbetter, who discovered that she had been compensated substantially less than her male co-workers, successfully brought suit against Goodyear.  A jury found that Goodyear owed her over $200,000 in pay.  But Ms. Ledbetter's victory was short-lived.  The U.S. Supreme Court overturned the verdict on appeal.

Additionally, a new study released by the American Constitution Society, which I mentioned in a previous post, revealed that the hostility to plaintiffs' employment discrimination claims has resulted in "an absolute drop in employment discrimination cases of 37 percent from fiscal years 1999-2007."  Is it a coincidence that between 1999-2007 the economy began to weaken?  Maybe this is just a case of what is "good for the employee is not good for a weakened economy."  And when faced with two countervailing interests, one has to give to the benefit of the other.  If this is so, then the federal courts will continue to be "out of order" for aggrieved employees for some time to come, or at least until the economy shapes up.  Perhaps what we need is for Congress to continue to amend the anti-discrimination statutes to correct erroneous court decisions?

AL

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