Those few age discrimination victims who manage to prevail in lawsuits against their employers may find their victory is elusive.
Such was the case in California recently when a Superior Court judge voided a jury’s decision to award 15 San Francisco firefighters $3.7 million in damages on the grounds of age discrimination in a city promotional exam. In a 9-3 verdict in 2013, the jury found the test was skewed against firefighters who were over the age of 40.
Judge Anne-Christine Massullo effectively snatched victory from the firefighters and gave it to the city.
The firefighters had accused the city of arbitrarily altering dozens of scores on the 2008 test and shredding documents before the firefighters had a chance to file a legal challenge. Judge Massullo questioned the city’s decision to destroy the documents but said this was minor error and that the test was “overwhelmingly successful” in measuring the firefighters’ job-related skills in a “fair and objective” way.
In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I point to research showing that employment discrimination cases are disproportionately dismissed on pre-trial or post-trial motions. A 2006 study found that federal judges grant employer motions to dismiss in employment discrimination cases 73 percent of the time, compared to a dismissal rate of about 53 percent in antitrust, patent and trademark cases. Employers also are disproportionately successful in reversing employee’s victories on appeal.
Judicial override of a jury verdict should be an absolute last resort because it is inherently a vote of “no confidence” in America’s civil justice system. Moreover, it is an appalling waste of resources when taxpayer money is spent empanelling juries and holding expensive trials only to have a judge say that he/she knows better.
Judge Massullo decided that no “substantial” evidence existed to support the jury’s verdict but what does this really mean? The U.S. Supreme Court has said that juries are uniquely qualified to decide cases that rest on determinations about conflicting evidence and the credibility of witnesses. It should be presumed that juries are more qualified than judges to decide the quantum of “substantial” evidence necessary to warrant a finding of age discrimination.