Federal Employment Discrimination Case Plaintiffs Face Obstacles

Although President Obama has been quick to take measures to make it easier for discriminated employees to file claims against culpable parties — most significantly by passing the Lilly Ledbetter Fair Pay Act in February ’09 — newly released statistics show that plaintiffs in job discrimination lawsuits seem to be having a tougher road to hoe than ever in prevailing at trial.

According to a recent Harvard Law Review study, over the past 30 years, plaintiffs in job discrimination lawsuits have won only 15% of their cases; whereas plaintiffs in other civil matters have won over 50% of their legal battles.

A number of factors may be at play in defining this trend:

1.    Employers seem to be far more cautious in terms of documenting the reasons for why they fire people. By establishing a paper trail — dotting all the “i’s” and crossing all the “t’s” — employers leave themselves less vulnerable to discrimination lawsuits.

2.    Several crucial Supreme Court cases have made it more difficult for plaintiffs to get comprehensive hearings. One such precedent-setting matter was Bell Atlantic Corporation v. Twombly, which shifted more burden to plaintiffs to prove the “plausibility” of claims.

3.    More discrimination cases are dispatched via “summary judgment” than in the past. According to the Federal Judicial Center, on average, in 9 out of 10 Federal job discrimination cases, employers now opt to settle at summary judgment.

4.    Whereas in the past, a Federal employer might fight tooth and nail against a reasonable or even an obvious claim; thanks to the precedent that’s been set over the past decade, employers now take discrimination suits much more seriously and thus work harder to settle out of court.

5.    The job discrimination cases that do go to trial now tend to be more frivolous because more legitimate claims are more often settled during pre trial.