Legal News

Do Federal Judges Discriminate Against Discrimination Claims?

By Nathan Koppel

Associated Press

In this Jan. 29, 2009 file photo, first lady Michelle Obama poses for a picture with Sen. Barbara Mikulski, D-Md., left, and Lilly Ledbetter in the State Dining Room of the White House in Washington. (Photo: AP)

Do job discrimination plaintiffs get a raw deal in federal court?

A WSJ piece today examines that question, citing recent studies that show discrimination plaintiffs lose at a higher rate in federal court than other plaintiffs and more often get tossed out of court on summary judgments.

The statistics provide sobering news for plaintiffs’ lawyers and employee advocates, who have hoped that changes made by the Obama administration might usher in a more favorable climate for discrimination claims. The first piece of legislation signed by Obama was the Lilly Ledbetter Fair Pay, Act, which makes it easier for to sue over pay discrimination.

But the fact that more workers have standing to sue doesn’t mean they will be warmly received in court, if previous patterns hold steady. From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy.

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.

Defense lawyers say that companies are quick to settle discrimination suits that appear credible. Cases that aren’t settled, they claim, often are frivolous and should be dismissed. Says Lawrence Lorber, a partner at Proskauer Rose: “If it’s a real case, they settle. Employers aren’t dumb.”

Whatever is behind the disparity, the odds against winning discrimination cases have some employee lawyers reluctant even to try, WSJ reports. “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.

Full post as published by Law Blog - WSJ.com on February 19, 2009 (boomark / email).