There is overwhelming evidence that federal courts for years have ignored and marginalized plaintiffs in employment discrimination cases.

Judge Richard A. Posner, one of the nation’s leading appellate judges, recently resigned from the 7th Circuit U.S. Court of Appeals citing his disgust for the dismissive treatment that his fellow jurists accorded to pro se litigants. The vast majority of pro se litigants are victims of a justice system that is too expensive for all but a privileged few. Most Americans cannot afford to hire an attorney and either must proceed on their own or passively suffer gross injustice. Posner told abovethelaw.com that pro se litigants “deserve a better shake.”

Posner says judges divert the cases of pro se litigants to staff attorneys and then routinely dismiss the case after the employer files a motion for summary judgment.

In addition to Posner, attorneys for the Center for the Study of Law and Religion at Emory University School of Law are questioning the high rate of dismissals in lawsuits involving employment discrimination. They filed an amicus brief last month that points to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.

The win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

According to the authors, the disproportionate rate of dismissal of employment discrimination cases “raises serious questions about procedural and substantive fairness, and the proper role of judges and juries.” They say the wholesale dismissal of employment discrimination cases may violate the plaintiff’s right under the Seventh Amendment to a trial by jury and the key principles of common law upon which the Seventh Amendment rests.

The brief was written by Emory Law School Professor Mark Goldfeder, civil rights attorney David I. Schoen and Center doctoral student Anton Sorkin, also an attorney. The brief argues the 11th Circuit should revive a lawsuit filed by Jerberbee Jefferson against Sewon American Inc.  Jefferson claims she was fired because she complained she was denied a job because the company wanted to hire a Korean worker.

Here are some excerpts from the brief:

• “Without a jury trial – where plaintiffs/employees tend to do better – the evidence is left to the sole discretion of a judicial fact finder who typically rules in favor of defendants/employers.”
• “While there remains skepticism that summary judgment is unconstitutional per se, Appellants are right to question the misapplication of summary judgment in employment discrimination claims especially given its predominate use and advantage to employers.”
• “The advantages of trial by jury may just help reduce … the doomed effort to ‘eliminate the personality of the judge’ by giving opportunity to test the credibility and weight of witness testimonies through cross-examination.”
• Summary judgment has evolved into a “de facto bench trial without any of the constitutional protections that an actual trial affords.”

The authors cite as a “classic example” of injustice the case of Abeles v. Metropolitan Washington Airports Authority, 676 Fed. Appx. 170 (11th Cir. 2017). Summary judgement was granted against the appellant after she missed a day of work for Passover, which she had observed for more than 20 years. She complained she was fired for alleged insubordination and failing to properly notify her employer in the prescribed manner.

Why haven’t federal courts addressed evidence they routinely discriminate against employment discrimination plaintiffs?

The federal court system is a closed and insular system and lacks effective citizen review. Congress passes the judiciary’s budget but seldom questions their activities. The titular head of the system is the U.S. Supreme Court, which still refuses to allow cameras in its courtroom,  essentially choosing to keep the general public in the dark about its proceedings. In other words, the federal court system is largely unaccountable to the public.

I sent a message to the Administrative Office of the U.S. Courts on Monday asking: “Has the Court or is the Court going to review ongoing concerns about the disproportionate rate of dismissal on motion for summary judgment in employment discrimination cases.” I’ll let you know if I get a response (don’t hold your breath.)