Wednesday, February 18, 2009
Readers of this blog are well aware of some of the recent scholarship on employment discrimination claims in federal court. The Wall Street Journal has picked up the story--tying the trends to the Ledbetter Act among other things--and discussed studies by Kevin Clermont and Stewart Schwab (both at Cornell) and Joe Seiner (South Carolina). Some excerpts from the WSJ story:
Workers recently gained new ammunition to file job-discrimination cases in federal court, but they still face long odds against emerging victorious. A battery of recent studies shows that employees who sue over discrimination lose at a higher rate in federal court than other types of plaintiffs. They also get less time in court, with judges quicker to throw out their cases. . . .
Just because more workers have standing to sue doesn't mean that they will receive a better reception in court, if previous patterns hold steady. From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, in all other civil cases, the win rate was 51%, according to a study to be published this month by the Harvard Law & Policy Review. "Judges demand more of discrimination cases than other types of cases," says Stewart Schwab, a co-author of the study and the dean of Cornell University Law School. . . .
Even the federal courts have detected the pattern of more dismissals in discrimination cases, though they surmise different reasons for it than do plaintiffs' lawyers. A report last year by the Federal Judicial Center, the research arm of the federal courts, found that judges nationwide terminated 12.5% of employment-discrimination cases through summary judgments, before the suits reached trial. In 90% of those cases, it was the employers who requested the summary judgment. In contrast, the study found, 3% of contract cases and 1.7% of personal-injury and property-damage suits were dismissed via summary judgments. . . .
Equally troubling to critics, though, is that federal judges also now routinely terminate employment-discrimination cases through motions to dismiss, meaning that the plaintiffs aren't allowed to conduct fact finding to support their claims, according to a law-review study due to be published in August by the University of Illinois College of Law.
The study analyzed the impact of the U.S. Supreme Court's 2007 ruling in Bell Atlantic Corp. v. Twombly, which authorized federal judges to dismiss cases unless plaintiffs can detail enough facts in their initial complaints to state a "plausible" claim -- a higher standard than previously existed. Although the Twombly case involved an antitrust dispute, it has since been applied broadly to discrimination cases, says Joseph Seiner, a professor at the University of South Carolina School of Law, who wrote the study.
As an example of the kind of case that has suffered, Mr. Seiner pointed to Mangum v. Town of Holly Springs, in which a North Carolina federal judge last year dismissed a female firefighter's claim that she had been subjected to a hostile work environment. The judge cited Twombly in dismissing the sexual-harassment claim. Mr. Seiner says "such a harassment allegation should at least get to the stage where you take depositions."
The full articles are worth the read and, hopefully, will be part of a much longer discussion on this topic.