Though this will not come as a shock to practitioners in the field or former plaintiffs, the evidence shows that discrimination cases face far worse odds than other types of litigation.
An article in the Wall Street Journal examines some studies on discrimination cases and finds that:
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.
Some firms aren’t taking cases anymore because they are so hard to win but some defense lawyers think think the statistics may be misleading:
The odds against winning discrimination cases have some employee lawyers reluctant even to try. “We will no longer take individual employment-discrimination cases, because there’s such a high likelihood of losing,” New York plaintiffs’ attorney Joe Whatley Jr. says. Job-discrimination case filings declined by 40% from 1999 to 2007, federal court records show.
The bad track record for discrimination cases has been ascribed to everything from a dearth of minorities on the bench to inherent difficulties in proving job discrimination, which is rarely overt.
Another reason why discrimination suits might fare poorly, say lawyers who represent employers, is that companies can be quick to settle suits that appear credible. Cases that aren’t settled, says Dallas defense attorney Michael Maslanka, often are frivolous and should be dismissed. Adds Lawrence Lorber, a defense lawyer in Washington: “If it’s a real case, they settle. Employers aren’t dumb.”
Corporate friendly federal judges may have a different take as well, for example:
One possible explanation, says David Hittner, a U.S. District Court judge [appointed by Ronald Reagan - no friend to civil rights] in Houston, is that employers generally have become more careful to avoid discriminatory behavior. They also are better at documenting the reasons behind firings. “Companies often have an extensive record that this [employee] was not doing their job well and that is the reason for the termination,” Judge Hittner says.
Additional troubles are arising from rulings hostile to civil rights of employees:
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 deposition
Despite daunting odds plaintiffs should always fight for their rights. Consulting an employment discrimination lawyer is always the first place to start. Since there is a short time to bring a complaint, after which a lawsuit may be barred, plaintiffs should never wait long to consult an attorney.
