Plaintiffs only win 15% of job discrimination claims

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The odds of winning a job discrimination suit in federal court are against plaintiffs’ attorneys.

According to statistical analysis conducted by two Cornell University Law School professors of federal records from 1979 to 2006, plaintiffs who brought job discrimination cases to district court won only 15 percent of the time, compared to 51 percent for non-jobs related cases.

The study, released on Sept. 18 by the American Constitution Society for Law and Policy, also suggested that because of the comparatively low success rate, fewer lawyers are willing to risk taking an employee’s case to the federal level.

Why is it so hard for plaintiffs to succeed in federal court when it comes to job discrimination?

Several employment law attorneys attributed the low rate in part to increasingly narrow interpretations of federal statutes by some judges, which in turn has prompted plaintiffs to pursue less lucrative avenues for relief.

“It certainly strikes a chord with me and I may tell people the statistical likelihood of success in federal court is so low, perhaps they should sign that severance package,” said attorney Jeffrey S. Hynes, who is co-chair of the Wisconsin Employment Lawyer’s Association.

Burden of Proof

Hynes cited a rigid interpretation of congressional mandates by some district court judges as a reason why fewer job discrimination cases are ending favorably for plaintiffs.

According to the report developed by Stewart J. Schwab and Kevin M. Clermont, there was a 37 percent drop in the number of cases brought by plaintiffs from 1999 to 2007.

“The popular view among plaintiffs’ attorneys is that these statistics are driven by the courts’ increasing disregard, if not disdain, for cases that involve workplace disputes,” said Hynes, who has practiced employment law for the last 24 years.

Attorney Deborah A. Krukowski, who represents employers, concurred with the notion that judges scrutinize cases more at the federal level, but also suggested that courts are weeding out frivolous claims.

She said in her experience, employers are having success arguing that cases are being brought without merit, but she has not noticed a slowdown in the number of claims filed.

“Harassment, discrimination, and retaliation claims have not slowed down in my practice,” said Krukowski, of Krukowski & Costello, S.C., in Milwaukee. “These claims are often settled or dismissed on motion for summary judgment before they even get to a jury.”

But while a loss or dismissal at the trial court level may warrant an appeal, appellate decisions are not likely to result in a better rate of success for plaintiffs.

The study showed that during a 16-year span from 1988 to 2004, less than 9 percent of the 2,042 cases lost at trial and appealed to the U.S. Court of Appeals were reversed for plaintiffs in employment discrimination cases, compared with a 41 percent reversal rate for defendants who lost at trial.

Plaintiffs’ attorney Kurt C. Kobelt of Lawton & Cates, S.C., in Madison noted that the district courts are bound by precedent established by the federal appellate courts. He suggested that the Seventh Circuit is “known for not being very sympathetic towards employees in any kind of discrimination ruling.”

Hynes said that the low success rate on appeal and the added time and money involved is another deterrent for bringing a federal claim.

“I’m finding that courts have been so strictly construing the law, that many cases with good conspicuous evidence are getting thrown out,” said Hynes. “That forces us to appeal to the Seventh Circuit in order for clients to get their day in court, but that often requires more resources.”

Alternative Relief

Even though there are fewer job discrimination cases being filed in federal court, the number of employees who have credible cases is as high as ever, said Hynes, who pointed to the current economic climate, which has forced many companies to downsize or shuffle its workforce.

But even though federal cases could potentially warrant bigger damages, plaintiffs’ attorneys are reluctant to invest their time and client money into a case that has a slim chance of being heard.

The study showed that plaintiffs won only 3.5 percent of their pretrial adjudications from 1979 to 2006 in federal court, while other plaintiffs have won 21 percent of their pretrial adjudications, or motions for summary judgment.

But attorney David F. Loeffler, who also represents employers at Krukowski & Costello, expects more plaintiffs will head to federal court because the payoff is greater. Unlike in state courts, plaintiffs can recover damages for emotional stress and punitive damages up to $300,000.

“If the case is a bit dubious, it is much less costly to the person and to the lawyer to take a cheaper run [in the state courts] even though the payoff is restricted to direct monetized economic loss, plus [perhaps] attorney fees,” said Loeffler.

Kobelt said to ensure clients still have their day in court, more plaintiffs’ attorneys are opting to file cases at the state court level or engaging in mediation.

He noted the decided disadvantages of litigating job discrimination cases in state court, which don’t allow pursuit of punitive or emotional damages or a jury trial. However, he said attorneys often work with what they have.

“Unless you have damages in those areas, attorneys file in state court,” said Kobelt.