One-Two Punch by Anti-Worker Court

The U.S. Supreme Court continued its march toward being the most anti-employee rights court in modern U.S. history by issuing two decisions this week that make it more difficult for workers to gain the protection of federal discrimination laws.

In both decisions, the Court was divided along the same ideological lines. Voting in the majority were  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy  and Alito.  Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Supervisor?

In the first case, the Court threw out a lawsuit filed by a Maetta Vance, a black catering worker at Ball State University in Indiana. who said a white colleague whom she regarded as a supervisor slapped and intimidated her. Vance also said she was generally subjected to racially offensive  epithets in the workplace.

 The Court said the alleged harasser didn’t meet the legal definition of supervisor, even though the woman’s job description said she was a supervisor, because she couldn’t fire Vance.  

Justice Samuel Alito, writing for the majority in Vance v. Ball State University, said workers qualify as supervisors only if they can take  “tangible employment actions” against the alleged victim (i.e., hire,  suspend, transfer, demote, fire, discipline). 

The issue is important because employers are vicariously liable under Title VII of the Civil Rights Act of 1964  for discrimination by supervisors (but not co-workers) that culminates in a tangible employment action.

The dissent questioned why the majority chose to articulate its restrictive  definition of a supervisor:

“Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts …  Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.”

 The  opinion completely rejects an approach adopted more than a decade ago by the U.S. Equal Employment Opportunity Commission and several appellate courts that a supervisor is an employee who has the authority to recommend tangible employment decisions or is authorized to direct the employee’s daily work activities.

The majority also rejects the common dictionary definition of the term:

su·per·vise:  to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of.  (Dictionary.com)

Under the decision, victims of illegal harassment by non-supervisors can still sue an employer for negligence if they can show the employer failed to monitor the workplace, respond to complaints or effectively discouraged complaints from being filed. The majority also said an employer can be held to have “delegated” the power to take tangible employment actions to employees upon whose recommendation it relies. The majority upheld the lower court finding  that Ball State was not negligent because it took “reasonable steps” to halt the discrimination.

Retaliation

In the second 5-4 ruling, the Court made it much more difficult for workers  to win claim o f retaliation against employers in discrimination lawsuits.

The plaintiff  in University of Texas Southwestern Medical Center v. Nassar,  Dr. Naiel Nassar, a physician, said he was denied a faculty position with a University of Texas medical center because he complained he was  the victim of discrimination on the basis of his Middle Eastern background.

 Justice Anthony M. Kennedy, writing for the majority, said a worker must show that retaliation was the “but for” reason that  the employer took action, not merely one of several motives.  In other words, the  plaintiff must show the retaliation would not have occurred “but for”  the defendant’s discriminatory conduct. 

Justice Kennedy cites the Court’s somewhat notorious ruling in  Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176.  In that case, the Court  distinguished  the Age Dis­crimination in Employment Act of 1967 from other discrimination claims by requiring plaintiffs to prove that age discrimination was the “but for” cause of any adverse employment action.  It is a rare case that an employer cannot point to at least one other factor to justify an adverse employment action. The Gross decision has made it exceedingly difficult for plaintiffs to win age discrimination claims.

In her dissent, Justice Ginsburg wrote:

“The ball is once again in Congress’s court to correct the error into which the court has fallen and to restore the robust protections against workplace harassment the court weakens today.”

The American Council on Education and five other higher-education groups urged the justices, in a friend-of-the-court brief, to base their test of whether someone is a supervisor on the amount of authority possessed by the worker rather than workplace titles or worker perceptions.

A recent study published in the Minnesota Law Review determined that the Court is  the most pro-business Court since World War II.

* See earlier coverage of Vance case.

 

 

 

Fed Cts Eschew Social Media

youtubeAre federal courts out of touch?

 The National Center for State Courts reported the results of a recent survey that would indicate that federal courts literally are out of touch. The survey shows federal courts have thus far largely eschewed the use of “social media,” including Facebook, Twitter and YouTube.

 Out of the 135 responding courts, only 21 (15.6%) said that they were using social media (split almost evenly between District and Bankruptcy Courts).

This blog, of course, is concerned that federal courts are pro-business  and that federal judges disproportionately dismiss employment cases.  But the bigger issue is the extent to which federal courts simply are out of touch with the American citizenry.

Why would the judicial branch of the federal government pass up the incredible opportunities  offered by social media to inform the public about the court system and to essentially make the case that federal courts are important and should received taxpayer dollars?

 One can look for clues at the U.S. Supreme Court, the leader of the federal judiciary. It still refuses to allow television cameras in its courtroom. Television is archaic technology that dates back to the 1920s.

 Courts do have web pages, of course, but this is a small concession to the universe of opportunity available through social media. Here are some of the many uses of social media that federal court system could benefit from:

  •   Courts are in the business of deciding legal issues. Facebook and Twitter are tailor-made for courts to notify the public and the media when an important legal decision is issued or when a jury verdict is in.
  •  Social media offers the potential for timely dissemination of  useful information to the general public (i.e., Snow day – Court closed; Jury trial postponed so jurors need not report for duty; Delays possible – Parking lot closed for re-paving, etc.).
  •  Imagine the increase in efficiencies that would occur if a court posted YouTube videos showing how the court operates. For example, what should a visitor expect with respect to security screening methods?  Where do pro-se litigants sit in a courtroom and how do they present their case to a judge? 
  • Social media offers tools that can be used to education the citizenry about civil and criminal justice issues. What are the rules of evidence? What is hearsay? This type of educational outreach would be especially useful to litigants who cannot afford an attorney, which includes most poor and middle class Americans.

 Perhaps most importantly, social media offers the federal court system the opportunity to  build trust in the institution and to counteract common negative stereotypes about federal courts –  remote, insular,  obtuse,  elitist, pro-business, inappropriately “activist,” influenced negatively by political considerations, out of touch, etc.. These negative stereotypes  affect the public’s understanding of the important issue of judicial independence.  Enhanced trust also could come in handy when the federal court asked  taxpayers for money to operate.

  One wonders what model of leadership, administration or management is being followed in the federal courts? What credible business school today recommends that an institution which serves the general public reject the very tools of communication that are  most in use by the general public?  And, the last time I looked,  Facebook, YouTube and Twitter were free. 

Few Consequences for Sexual Harassment

sexual-harassmentUPDATE:  Shortly after this story was written, the U.S. Supreme Court made it more difficult to win a sexual harassment lawsuit by raising the bar for who constitutes a “supervisor” in the workplace – a designation that has important consequences with respect to the employer’s liability. See Vance v. Ball State University.

Sexual harassment in the military underscores a much bigger problem in American society.

 Sexual harassment is a major problem in all workplaces but it is extremely difficult – if not impossible – for victims  to hold abusers accountable for their illegal conduct. Surveys show that third of American women say they have experienced sexual harassment on the job.

For years, women in the military complained that the military did little or nothing about complaints of sexual abuse.  Then two military officers whose duties include preventing sexual harassment and assault were arrested for alleged sexual assaults and the military was forced to confront the issue.

 Defense Secretary Chuck Hagel  recently offered a solution that seems oddly misdirected.  Hagel said that  all of the Pentagon’s sexual assault prevention coordinators and military recruiters will be retrained, re-credentialed and rescreened. But there is no evidence that this is a problem of training; the evidence points to a problem of lack of consequences.

Members of the military who commit sexual harassment and assault have not been held to account by the “employer”  and so it continues. And this is also the problem in the wider society. There is a yawning lack of accountability for perpetrators of sexual abuse and the employers who tolerate this behavior.

Victims in non-military workplaces also complain to supervisors and human resource officers who often do little or nothing to hold the perpetrator accountable.

At that point, the victim’s only  recourse is to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) – which is a necessary precursor to filing lawsuit alleging a violation of Title VII of the Civil Rights Act of 1964.  The  EEOC receives about  30,000 sex discrimination complaints a year and, of these,  the agency targets systemic cases involving numerous victims. If the victim’s case doesn’t fit its parameters, the EEOC likely will do nothing but issue a “Right to Sue” letter.  That can take 180 days.  

 Now the victim’s only recourse is to file a lawsuit.  The first hurdle is finding a private attorney willing to take the case.  This can be very difficult for mid- to –low wage earners because there are more than enough high-earner victims with potentially higher damages. The victim also must pay the attorney’s up-front retainer – which in some areas is $25,000 or more.. People like to blame money-grubbing lawyers but legislatures and judges have made these cases very difficult to win and very costly.

 If the case ever gets to court it may be there for only a short time. Federal judges dismiss discrimination cases in the early stages at a much higher rate than other types of cases. If that happens, the victim’s only option is to file a costly appeal.  But if the case is not dismissed, it will take years to wind it way through the system. 

Occasionally one hears of a particularly egregious case of sexual assault that results in a spectacular jury verdict. These are rare.

In short, it is extremely difficult for victims of sexual abuse in the workplace to hold perpetrators accountable for  sexual abuse, not to mention the employers that tolerate abusive work environments. The system screens out all but the most dedicated victims and the most egregious cases. It’s like a lottery that few will win. And that’s a huge part of the problem.

It could get worse
If that’s not bad enough – the situation could get worse.

The  U.S. Supreme Court, the most pro-business Court since WWII,  heard arguments last year on a case that involves who qualifies as a “supervisor” under a federal employment discrimination law. This  question is important because it goes to the issue of damages and whether the employer – rather than the individual abuser –  is liable for the conduct of the abuser.

 The 7th U.S. Circuit Court of Appeals has ruled that only a person with the ability to fire or hire employees can be considered a supervisor,  not managers who supervise workers but cannot fire them. Other federal appeals courts and the EEOC  define a supervisor as a person with authority to direct daily work activities and can undertake or recommend “tangible employment decision affecting employees.”

 The case was brought by Maetta Vance, an African-American catering specialist at Ball State University, who accused a co-worker, Shaundra Davis, of racial harassment and retaliation in 2005. She  claimed the university was liable because Davis was her supervisor. A federal judge dismissed her lawsuit, saying that Davis was not her supervisor because she could not fire Vance. The judge also ruled the university was not liable because it  took corrective action. The 7th Circuit of Appeals upheld that decision, and Vance appealed to the Supreme Court.

U.S. Supreme Court Decidedly Pro-Business

justice-scale-761665_1This blog has questioned whether employees who file discrimination lawsuits get a fair shake from federal judges who have lifetime tenure barring bad behavior.

Now there is a comprehensive study that shows the U.S. Supreme Court is the most pro-business court since World War II.

An article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Supreme Court Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946. 

And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

In the eight years of Chief Justice Robert’s tenure, workers have lost ground while corporations have gained ground. Some of the pro-business decisions include:

  • In Genesis HealthCare Corp. v. Symczyk, the Court in a 5-4 vote in April 2013 dismissed a proposed class action case filed by a nurse who alleged her employer docked employees for meal breaks even when they worked through the shift  in violation of the Fair Labor Standards Act.  The Court ruled the nurse’s lawsuit was moot because the company offered her a settlement – even though she rejected the settlement – and therefore could not be the basis for a class  action lawsuit..
  • In Wal-Mart v. Dukes, the Court in  2011 by a vote of 5-4, refused to certify a class action of 1.6 million female employees who alleged discrimination  in pay and promotion policies and practices in Wal-Mart stores. The Court said the plaintiffs did not have enough in common to be a class.
  • In Knox v. Service Employees International Union, Local 1000,  the Court in 2011 effectively curtailed a union’s ability to raise money for political purposes. The Court in a 7-2 vote overturned a longstanding rule that  that  non-union members covered by union contracts be given the chance to “opt out” of the assessment of special union fees for political expenses. The Court said the First Amendment requires that non-members should be sent a notice giving them the chance to “opt in” to the special assessment.
  • In  Gross vs. FBL Financial Service, Inc.,  a 5-4 decision issued in 2009, the Court made it much more difficult for plaintiffs to win age discriminations lawsuits by requiring workers to show that age discrimination was the “but for” cause of the adverse employment action (i.e. termination) they suffered. In other discrimination cases, the discriminatory motive need only be one factor in the adverse employment decision.

The study in Minnesota Law Review looked at cases with a business on one but not both sides. The adversary might be an employee, job applicant, shareholder, union, environmental group or government agency. A vote for the business was counted as a pro-business vote.

The study concluded, “the Roberts court is indeed highly pro-business — the conservatives extremely so and the liberals only moderately liberal.”

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium on April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts. These cases are dismissed at a  significantly higher rate than non-employment cases before they ever to get a jury.

Employer gets Immunity from Class Action

boardroom

Workers this week suffered another  potentially devastating blow when an influential appellate court ruled in Parisi v. Goldman Sachs & Co, that a former managing director could not file a class action lawsuit against  Goldman Sachs for sex discrimination because she had signed a contract agreement to arbitrate employment disputes.

The decision by the  Second Circuit Court of Appeals in New York creates a scenario that  allows a savvy employer to class-action proof itself.

The appellate court ruled that Lisa Parisi, a former managing director of Goldman Sachs, could not sue the company in a class action because she agreed to submit all employment disputes to binding arbitration when she signed a “managing director” agreement in 2003.  Since the “managing director” agreement is  silent as to class actions,  Parisi must proceed to arbitration  on an individual basis. Bottom line: Parisi can’t sue in class action and she can’t arbitrate in class action.

 Parisi, who was fired in 2008,  alleged Goldman Sachs conducted a “pattern and practice” of sex discrimination against top female employees in violation of Title VII of  the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the New York City Human Rights Law.  She said she could not proceed in arbitration with a class action claim without Goldman Sachs permission and thus was effectively being denied her right to sue the company for systemic sex discrimination.. In other words, she said the arbitration clause in her  agreement must be invalidated because arbitration would preclude her from vindicating a statutory  right to file a “pattern and practice” class action lawsuit.

The appellate court agreed with Goldman Sachs that no substantive statutory right exists for employees to pursue a class action “pattern-or-practice” claim.

The court’s decision reversed two earlier decisions by a federal magistrate and a  district court judge who both denied Goldman Sach’s motion to compel arbitration in the case.

 The ruling  is a  boon to employers who are prescient enough to force new hires or employees who are being promoted to sign over-reaching binding arbitration clauses;  it  effectively negates the possibility that the employee will participate in a costly class action lawsuit down the road.   

Goldman Sachs took the position that it could not be sued by Parisi in federal court because of the arbitration clause, and it could not be compelled to defend a class action suit in arbitration because the arbitration clause in the agreement Parisi signed  was silent as to the arbitration of class claims.

Goldman Sachs is not entirely of the woods. Parisi filed the class action lawsuit along with two other Goldman Sachs employees,  Shanna Orlich, an associate, and H. Christina Chen-Oster, a vice president, who reportedly did not sign binding arbitration agreements with Goldman Sachs and presumably could proceed without Parisi.

Parisi’s employment agreement  contained an  arbitration clause in which she agreed  to arbitrate any dispute, controversy or claim arising out of or based upon or relating to “Employment Related Matters.”  The agreement defined  “employment related matters” are defined as “matters arising out of or relating to  or concerning this Agreement, your hire by or employment with the Firm or the termination thereof,  or otherwise concerning any rights, obligations or other aspects of your employment relationship in respect of the Firm.”

 The appellate court reasoned that  the U.S. Supreme Court has consistently interpreted the Federal Arbitration Act as establishing a “federal policy favoring arbitration agreements.”  It also cited an earlier ruling in which the appeals court  concluded that in Title VII jurisprudence “pattern-or-practice” simply refers to a method of proof and does not constitute a “freestanding cause of action.”  Chin v. Port Authority of New York, 685 F.3d 135, 148 (2d Cir. 2012).

The arbitration clause in question states the Plaintiffs claims will be “finally settled by arbitration in New York City before, and in accordance with the rules . . . of, the New York Stock Exchange, Inc. (“NYSE”) or . . . the  National Association of Securities Dealers (“NASD”). If both the NYSE and NASD decline  to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association  (“AAA”) in accordance with the commercial arbitration rules of the AAA. You agree that any  arbitration decision and/or award will be final and binding.”

Goldman’s appeal was supported by briefs from the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association. Parisi had support from the NAACP Legal Defense and Education Fund and the National Women’s Law Center.

The case is Parisi v. Goldman Sachs & Co, 2nd U.S. Circuit Court of Appeals, No. 11-5229.

Older Workers Vulnerable to Age Discrimination

daggerThe U.S. Supreme Court stuck a dagger in the heart of the Age Discrimination in Employment Act a few years ago in its decision, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

Prior to Gross, the same standard of proof applied equally to all workers who faced illegal discrimination on the job. The Court in Gross established a far higher standard of proof for plaintiffs in age discrimination cases than exists for plaintiffs in cases alleging discrimination based on race, sex, national origin and religion.  This has left older workers more vulnerable to age discrimination.

A bi-partisan bill was introduced in the U.S. Senate in March to rectify this wrong. Under the Protecting Older Workers Against Discrimination Act , if a victim can show that age discrimination was a “motivating factor” behind a decision, the burden shifts to the employer to show it complied with the law. The bill is co-sponsored by Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Vermont Senator Patrick Leahy (D-VT).

After Gross, older workers who filed age discrimination cases were required to prove that age discrimination was the “but for” cause of their termination (i.e., “but for” age discrimination, they would not have been demoted or fired.)

Alternatively, employers could point to any other “legitimate non-discriminatory” reason for firing the Plaintiff to avoid liability.  (“Sure we thought the old fogey was an over-paid dinosaur but he failed to follow company procedure when he called in sick one day so he’s gotta go!”)

Under the proposed bill, it wouldn’t matter if the employer had more than one motivating factor – if one of those motivating factors was age discrimination, the employer could be held liable.

The  Court reasoned backwards in Gross.  The Court said that Congress amended Title VII of the Civil Rights Act of 1964 to permit mixed-motive claims in discrimination claims involving race, color, religion, sex and national origin. So the fact that Congress failed to amend the ADEA to permit mixed-motive claims meant that Congress intended to disallow mixed -motive claims.  The Court threw out decades of precedent that treated age discrimination like every other invidious form of discrimination and left countless older workers without real protection against age discrimination.

The Gross decision has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

Harkin is Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

U.S. Supreme Court Hides Behind Anonymity

The Revolution Won’t be Televised

A while back, I noted the U.S. Supreme Court has done more than it’s fair share to contribute to the divide between the “haves” and the “have nots” in our society.

The President and the U.S. Congress receive much of the blame in the “one percent v. 99 percent” debate because they can be seen sweating under the glare of the television spotlight. They can be held accountable. But the nation’s highest Court conveniently refuses to allow its proceedings to be televised.

Now the Court has issued a press release that makes it clear it will not allow television cameras when it hears arguments on President Obama’s health care law, the Patient Protection and Affordable Care Act, on March 26, 27, and 28.  The law  is being challenged by 26 states and the National Federation of Independent Business. Instead, the Court will provide the audio recordings and transcripts of the oral arguments on the Court’s website, www.supremecourt.gov.

The audio recordings and transcripts undoubtedly will be of interest to a few law students and historians but most people today “watch” their news on television or the Internet. Refusing to be televised is akin to insisting in 1440 that the bible be penned in ink by monks, longhand, rather than printed on the newfangled Gutenberg printing press.

A USA TODAY/Gallup Poll found that 72% of the people surveyed think the Court should allow cameras to televise oral arguments on the health care law.

Many Americans are dismayed by the tawdry spectacle of the on-going Presidential race – which is infused with money funneled through superpacs from foreign countries and their lobbyists.  How many know that this is the direct result of the Court’s 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), which held that corporate funding of “independent” political broadcasts in elections is protected speech under the First Amendment?  Many on both sides of the political aisle believe the Citizens United ruling is literally one of the worst rulings in history and reflects a Court that is sadly out of touch with reality.

Could the Court be unaware of the deleterious effect of the Citizen’s United ruling on our country?  One could make a compelling argument that televising court proceedings would not only be good for America but also for the  U.S. Supreme Court.

DECK STACKED IN FEDERAL COURTS?

Note: The media office of the Administrative Office of the U.S. Courts has failed to respond to a request for comment about this blog entry. PGB

Workers who bring employment discrimination cases in federal court are not just paranoid. Apparently, the deck really is stacked against them!

(Isn’t this discrimination in itself?)

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts.

Specifically, they discussed why employment discrimination cases are more likely to be summarily dismissed by federal judges through rulings on pre- and post-trial motions.  One factor is believed to be  U.S. Supreme Court decisions (Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal) that raised the quantum of facts that a plaintiff must plead to avoid a motion to dismiss.

“A substantial and growing body of evidence, both empirical and anecdotal, shows that civil rights cases, and in particular those alleging employment discrimination, are disproportionately susceptible to dismissal before trial as well as to unfavorable  (judgment notwithstanding verdict)  motions after trial,” said the symposium planners.

Approximately 150 attended the symposium, including  retired Judge Nancy Gertner from the U.S. District Court for the District of Massachusetts. She said the message sent by Twombly and Iqbal is that courts should be more concerned with protecting employers from being falsely accused of discrimination than they should be with allowing discrimination to go unpunished, and that as a result, the courts effectively have repealed the protections of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination.  A report of the symposium is availble from the Employee Rights Advocacy Institute for Law and Policy.

A study by the Federal Judicial Center of summary judgment cases filed in seventy-eight federal district courts in 2006 found that federal judges granted requests by the employer for dismissal on a motion for summary judgment 73 percent of the time. This compares to a rate of dismissal of:

  • 53 percent in contract cases,
  • 54 percent in tort or personal injury cases
  • 70 percent in civil rights cases generally
  • 64 percent in prisoner cases
  • 53 percent in “other” cases, including antitrust (53%) and patent (47%) and trademark (50%).

See Joe Cecil & George Cort, Federal Judicial Center, Estimates of Summary Judgment Activity in Fiscal Year 2006 (2007).

Some district courts granted summary judgment motions in employment discrimination cases more than others. In the Ninth Circuit, which is based in San Francisco, CA, some courts granted summary judgment in employment discrimination cases 93% of the time. In the Eleventh Circuit, which is based in Atlanta, GA, some courts granted summary judgment in employment discrimination case 95 % of the time.

This is a trend that has been getting WORSE for years, according to Cornell Law School Professors Kevin M. Clermont and Stewart J. Schwab, authors of Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? 3 Harv. L. & Pol’y Rev. 103 (2009).

They write that the plaintiff win rate for employment discrimination cases in federal court from 1979-2006 was 15 percent, which was much lower than that for non-jobs cases (51%), possibly because of hurdles placed in jobs cases that do not exist in non-jobs cases.

Furthermore, the authors state that there was a startling 37 percent drop in the number of employment discrimination cases in federal district courts between 1999 and 2007.  They say the decline may be  because “federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts.”  In other words, fear of bias by federal judges may be discouraging  potential plaintiffs from even filing employment cases in federal court!

Plaintiffs who appeal their losses or face an appeal of their victory “again fare remarkably poorly in the circuit courts,” the authors write.  Defendant/employers in the federal courts of appeals have managed over the years to reverse forty-one percent of their trial losses in employment discrimination cases, while plaintiff/employees manage only a nine percent reversal rate.

Generally, it appears that employers do far better in federal courts these days than ever before. A 2010 study found  the U.S. Supreme Court under the leadership of Chief Justice John G. Roberts, Jr., has ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and  42 percent by all courts since 1953.

Some other sobering but well-documented observations from the Clermont/Schwab article:

  • Plaintiffs in employment discrimination cases are much more likely to have to go to trial, possibly because employers perceive the anti-plaintiff bias works in their favor and refuse to settle.
  •  “ … [E]mployment discrimination cases constitute one of the least successful categories at the district court level, in that plaintiffs win a very small percentage of their actions and fare worse than in almost any other category of civil case.”
  • “Defendants, in sharp contrast to plaintiffs, emerge from appellate court in a much better position than they were in when they left trial court. … we have unearthed an anti-plaintiff effect that is troublesome.”
  • “The bulk of employment discrimination cases turn on intent … The subtle question of the defendant’s intent is likely to be the key issue in a nonfrivolous employment discrimination case that reaches trial, putting the credibility of witnesses into play.  When the plaintiff has convinced the fact finder of the defendant’s wrongful intent, that finding should be largely immune from appellate reversal … Reversal of plaintiffs’ trial victories in employment discrimination cases should be unusually uncommon. Yet we find the opposite.”

It is unlikely that employment law cases are weaker than other types of cases. The authors note that many studies show that people are not anxious to sue except in egregious situations and that contingent-fee attorneys, as well as those looking to fee-shifting, are reluctant to bring questionable claims. They say the impact of other factors on the decline of employment discrimination cases in federal court —  such as alternative dispute resolution — is not known but is unlikely to have caused the precipitous drop.

The authors say the employment discrimination category has dropped in absolute number of terminations every year after 1998, when the total was 23,722.  They say the drop has gone virtually unnoticed and unexplained.

It is understandable that courts want  to place procedural limitations on  cases to avoid overcrowded dockets and to  safeguard judicial resources. However, it is obviously unfair (or worse) for judges to single out employees who allege discrimination for disparate treatment. Like any other plaintiffs, these plaintiffs have  no where else to go but the courts for justice and they have every right to expect a fair and impartial hearing.

In fact, Americans are guaranteed a right to a trial by jury in federal court cases under the Seventh Amendment of the U.S. Constitution.  Specifically, the Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.

The Veil over the U.S. Supreme Court

In Cleveland, puppets are being used by a TV station to reenact excerpts from a political corruption trial that is closed to the public … Why not have puppets reenact  U.S. Supreme Court hearings?  Big Bird could play Chief Justice John G. Roberts and Abbie Cadabby could play Elena Kagen. PGB

 

Our society is increasingly divided between the “haves” and the “have nots,” with the vast majority of Americans now strongly disapproving of the way that government is operating.

The President and the U.S. Congress receive much of the blame because they are seen fumbling in prime-time under glare of the television spotlight. But there is another equally or even more powerful branch of government that manages to stay out of the spotlight – the judiciary, led by the U.S. Supreme Court.

If you think that corporations have disproportionate influence in American government, you need only look to the Court’s 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), holding that corporate funding of “independent” political broadcasts in elections is protected speech under the First Amendment. That ruling alone has spurred a tsunami of money into partisan election politics from corporations seeking to advance their interests.

Most people today “watch” their news on television or the Internet. Refusing to be televised is akin to insisting in 1440 that the bible be penned in ink by monks, longhand, rather than printed on the newfangled Gutenberg printing press. However, federal judges are elected for life and if they don’t want to be televised then who’s going to make them?

Now the Court is getting another opportunity to affect the balance of interests between corporate America and the average American. The Court has agreed to review the constitutionality of President Obama’s health care law, which is being challenged by 26 states and the National Federation of Independent Business.

A recent USA TODAY/Gallup Poll found that 72% of the people surveyed think the Court should allow cameras to televise oral arguments on the health care law, which are scheduled to be held in March.

Courts in the United States generally are unsympathetic to issues surrounding workplace abuse and unfair dismissal,  especially when compared to courts in many other industrialized societies.  Last summer, for example, the U.S. Supreme Court refused to certify a class action involving 1.5 million workers at Walmart who allege sex discrimination in violation of Title VII. The Court’s ruling will have an enormous  impact upon the ability of workers to secure fair treatment in the workplace.

Unfortunately, most non-union workers are clueless about how few  protections they really have until  they are escorted from the building with their possessions in a cardboard box.  Televising the proceedings of the U.S. Supreme Court is important to the goal of having an informed and educated public. Or is that what the Court is afraid of?