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Study Finds Federal Courts Hostile to Employment Discrimination Victims

By TChris, Section Judiciary
Posted on Thu Sep 18, 2008 at 06:58:06 PM EST
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The Supreme Court gets all the press, but the real action is in the lower courts. The Republican business community has made it a priority since the Reagan years to fill the federal courts with business-friendly judges. Many of those judges are hostile to employment cases, and they have come to populate the district and appellate courts. One reason to vote Obama/Biden that receives too little attention is the desperate need to balance the courts with judges who take a less biased view of employment discrimination cases.

The American Constitution Society released a study (pdf) to be published in its official journal, the Harvard Law and Policy Review, which (according to an ACS email) "shows that the federal courts are increasingly hostile to plaintiffs in employment discrimination cases." This is obvious to those of us who follow (with intense frustration) federal employment cases.[More ...]

Many district court judges scrutinize employment discrimination cases with special rigor, looking for any reason to justify dismissing them without a trial. Judges frequently grant summary judgment against employee plaintiffs because, in the judge's view, "no reasonable jury" could possibly think that the mountain of circumstantial evidence the employee has amassed could persuade a jury that discrimination occurred. If the employer didn't say "I'm not promoting you because you're a woman" or "I'm not hiring you because you're black," a significant number of federal judges won't give a discrimination victim his or her day in court. They think juries are too easily fooled, and see themselves as the guardians of reason.

From the ACS email:

The significance of the study's findings will be on display at a Senate Judiciary Committee hearing on federal courts next Tuesday, at which both Cyrus Mehri and Lilly Ledbetter will testify. Ledbetter was the plaintiff in the recent 5-4 Supreme Court decision Ledbetter v. Goodyear Tire, whose equal pay claim was turned aside by the high court.

The study was authored by Kevin M. Clermont & Stewart J. Schwab, law professors at Cornell. A slideshow and a video of a panel discussion of the study sponsored by ACS can be found here.

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    Study Finds Federal Courts Hostile to Employment Discrimination Victims | 5 comments (5 topical)

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    Federal Courts Hostile to Employment Disc. (5.00 / 1) (#3)
    by womanwarrior on Thu Sep 18, 2008 at 08:50:23 PM EST
    Thank you for this information validating what those of us who have fought on behalf of our employment clients have found, again and again.  These judges don't like jury trials.  They are removing our clients' rights to a jury to decide their cases.  They have driven a lot of employment lawyers out of the business.  We lose our shirts working on a client's case for 5+ years, and find we have only prolonged our client's pain.  And some clients want to sue us for losing because the judges made the law worse during the time their case was pending.  The judges no longer follow the plain language of the federal rules.  We cannot live with the appointment of any more of these hostile corporate judges to the district courts or the courts of appeals.  

    As one of those clients (5.00 / 1) (#4)
    by Cream City on Thu Sep 18, 2008 at 09:13:36 PM EST
    once, please know that there is seom validation for us in lawyers like you listening to us, at least.  The courts are horrible on such cases, but many of us know that the situation would be much worse without our warriors for the law.

    And TChris, the link to this study is going to some EEOC lawyers I know -- who probably know of it already, but just in case. . . .  And they tell me how horrible it has been for that agency under the Bush administration cutbacks, too.

    Parent

    TChris (4.00 / 1) (#1)
    by Ga6thDem on Thu Sep 18, 2008 at 07:04:45 PM EST
    I have to give you props here. This is a good argument. The SCOTUS argument has really gone over its shelf life.

    This really goes to the meat (none / 0) (#2)
    by coigue on Thu Sep 18, 2008 at 08:08:58 PM EST
    of feminism and equality.

    I disagree that the SCOTUS argument isn't powerful, but this is an issue I haven't seen discussed.

    Parent

    dismissing cases (none / 0) (#5)
    by diogenes on Thu Sep 18, 2008 at 09:39:34 PM EST
    When the losing side (or law firm) has to pay the legal costs of the winning side, it might be more reasonable to allow softer cases to go to trial.  Do you really think that lots of employment lawyers don't file suits to get a settlement in lieu of a long, expensive trial in soft cases?
    Why not move all these cases to an administrative judge instead of a jury, anyway?

    Study Finds Federal Courts Hostile to Employment Discrimination Victims | 5 comments (5 topical)

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