ABA Journal
November 2017
By Ellen Berrey, Robert L. Nelson and Laura Beth Nielsen
Illustration by Steven P. Hughes and Celia Krampien
Gerry Handley faced years of blatant race-based harassment before he filed a complaint against his employer: racist jokes, signs reading “KKK” in his work area, and even questions from co-workers as to whether he had sex with his daughter as slaves supposedly did.
Handley (a pseudonym) had an unusually strong case with copious documentation and co-workers’ support, and he settled for $50,000—even keeping his job.
But victory came at a high cost. Legal fees cut into Handley’s winnings, and tensions surrounding the lawsuit poisoned the workplace. A year later, he lost his job due to downsizing.
Handley exemplifies the burden plaintiffs bear in contemporary civil rights litigation. In the decades since the movement, we’ve made progress—but not nearly as much as it might seem.
On the surface, America’s commitment to equal opportunity in the workplace has never been clearer. Virtually every company has anti-discrimination policies in place, and there are laws designed to protect these rights across a range of marginalized groups.
But our examination of nearly 1,800 civil rights cases and interviews with parties and their lawyers shows that this progressive vision of the law falls far short in practice. When aggrieved individuals turn to the law, the adversarial character of litigation imposes considerable personal and financial costs that make plaintiffs feel like they’ve lost regardless of the outcome of the case. Employer defendants also are dissatisfied with the system, often feeling “held up” by what they see as frivolous cases. And even when the case is resolved in the plaintiff’s favor, the conditions that gave rise to the lawsuit rarely change.
In fact, the contemporary approach to workplace discrimination law perversely reinforces the very hierarchies that anti-discrimination laws were created to redress.
EXTENSIVE ANALYSIS
In our book, Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality, we offer a comprehensive analysis of the system of employment civil rights litigation, using both statistical data from a large random sample of cases and in-depth interviews with plaintiffs, plaintiffs lawyers, defendant employers and defense lawyers about their experiences with and perspectives on discrimination lawsuits. All the names of interviewees we use are pseudonyms as part of our human subjects protection protocol.
With support from the American Bar Foundation, the National Science Foundation and the Searle Foundation, we sent teams of research assistants to federal records centers to code the characteristics of a random sample of employment civil rights cases filed over a 15-year period—1,788 cases in all.
Most research on discrimination litigation examines only cases that generate published opinions. Such research leaves out the vast majority of cases that do not generate opinions, leaving analysts to study “the iceberg from its tip” (a phrase coined by colleagues John Donohue III and Peter Siegelman).
After performing statistical analyses on case outcomes, we drew a random subsample of cases in the four major types of claims (race, sex, age and disability) and four case outcomes of greatest theoretical interest (dismissal, early settlement, late settlement and trial). We then conducted in-depth interviews with parties and their lawyers. The interviews were recorded, transcribed and analyzed. This combination of data generated many findings that run counter to common mis-understandings about employment discrimination litigation.
THE MYTH LIST
Myth 1. Employment discrimination is a thing of the past.
While public opinion data shows Americans are now much less prejudiced on the basis of race and sex, and while the crudest forms of such segregation have been eliminated from the American workplace, several studies demonstrate that employment discrimination persists. Among the most striking, a 2007 study by Harvard University sociologist Devah Pager found that black men without a criminal background were less likely to receive a callback for a job interview than white men with a criminal background.
Myth 2. Workplace discrimination primarily takes on subtle forms and is confined to acts resulting from implicit bias.
While there is abundant research on the pervasiveness of unconscious bias, the plaintiffs’ stories we heard—such as that told by Handley—were often anything but subtle. Our plaintiffs spoke of having chocolate dildos put in their face at work, of a woman being told she could have a job when she could use the men’s room urinal, of being fired upon informing the employer of a diagnosis of cancer. Defendants typically contest these facts, but the asserted behavior is often flagrant.
Myth 3. Targets of discrimination are quick to sue.
Taking the example of race discrimination claims, we estimate that only about 1 percent of African-American workers who perceive they have been discriminated against at work in the last year file a charge with the Equal Employment Opportunity Commission. Our research shows that, across different types of plaintiffs, less than a quarter of EEOC charges lead to the filing of a lawsuit.
Myth 4. The number of employment civil rights lawsuits continues to grow, placing increasing burdens on the federal courts.
While the number of employment civil rights suits increased dramatically during the 1990s, reaching a peak of 23,735 in 1998, the number of lawsuits filed has declined dramatically since, falling to 13,831 in 2014.
Myth 5. A large proportion of employment civil rights claims are brought as class actions or with the intervention of the EEOC.
In fact, 93 percent of lawsuits are brought by a single plaintiff; only 1 percent of lawsuits are certified as class actions; and the EEOC intervenes in some 400 cases a year.
Myth 6. Plaintiffs have high odds of success and win large awards.
Although media coverage gives that impression, we find that some 36 percent of plaintiffs have their cases dismissed or thrown out on a motion for summary judgment and 50 percent of plaintiffs receive settlements early on, with an average settlement of $30,000. Of those cases that go to trial (6 percent), only one-third end with a win for the plaintiff.
More significantly, we find that plaintiffs often pay a high personal cost for their involvement in discrimination lawsuits. Beginning in the workplace, once they start to raise the possibility that they were discriminated against and certainly if they file a charge, they face ostracism from management and even co-workers. Handley became estranged from his wife and was forced to live out of his car because of financial difficulties.
Many plaintiffs report experiencing depression, alcoholism and divorce flowing from the stress of litigation. Many plaintiffs begin litigation hoping to get their job back; that almost never happens. Sam Grayson, a police officer who sued on a disability claim, received what we know was a large monetary settlement. His reaction: “I didn’t want any money. I wanted my job back. And I actually, to be completely honest with you, cried and left and felt like I had lost because it wasn’t about the money.”
Myth 7. Employers are opposed to anti-discrimination law.
On the contrary, we find that defendants and their lawyers voice support for a discrimination-free workplace, claim they do not tolerate discrimination in their organizations, and say that “if they find it they fix it.”
How do they explain discrimination claims brought against them? Overwhelmingly, they tend to reject the validity of any particular plaintiff’s claim.
We refer to this phenomenon as employers perceiving “the right right, but the wrong plaintiff.” Employer defendants tend to see plaintiffs as problem employees and eventually as legal adversaries of questionable judgment and integrity.
Myth 8. Many plaintiffs’ lawsuits are frivolous.
Our interviews with defendants and their lawyers reveal that they often believe plaintiffs are ill-informed about the law or seeking undeserved compensation. Yet there is no straightforward test to determine at the outset of a case whether it is weak on the merits. Unlike medical treatment files, which can be objectively reviewed by experts, employment files are themselves created by employer-defendants and may contain subjective assessment of performance and misconduct.
One indication of this difficulty can be seen in our data. The EEOC created priority codes to predict the odds of success when charges are filed. We obtained commission records and matched them to a large subset of our filings cases. The EEOC priority codes had no power to predict the outcomes of our cases.
Myth 9. Plaintiffs lawyers accept too many weak cases.
Defendants and their attorneys often blame plaintiffs lawyers for failing to act as gatekeepers on weak cases. Our interviews with plaintiffs lawyers found that they typically accept only about one in 10 potential employment civil rights cases they review. Indeed, plaintiffs lawyers articulated a long list of criteria they employ in assessing whether to take a case.
An unfortunate consequence of their screening is that it may work against less resourceful plaintiffs and people of color. Black plaintiffs were significantly less likely to have legal representation in litigation, with the result that they were more likely to have their cases dismissed.
Myth 10. Employment civil rights lawsuits now contain a large proportion of sexual harassment claims.
Such high-profile cases as the sexual harassment claims brought against the late Roger Ailes and former Fox News commentator Bill O’Reilly may give the impression that such claims have become predominant in the employment civil rights docket. Yet all sex discrimination claims continue to trail race discrimination claims in court filings (37 percent and 40 percent, respectively), and age (22 percent) and disability (20 percent) claims also make up a significant share of cases. Sexual harassment is raised in 17 percent of the cases in our sample. Far more common are claims of discriminatory firing, retaliation and promotion.
REINFORCING INEQUALITY
Our work identifies a central paradox in the American approach to workplace discrimination: Despite society’s embrace of a right to a discrimination-free workplace, how these rights are actually implemented in the workplace and in court tends to reinforce the very illegitimate inequalities that the law was created to address. We identify this as reinscription. Various legal processes reinscribe inequalities throughout litigation, from the financial cost of hiring an attorney to defendant employers’ reliance on small settlements.
One prime example of reinscription is how stereotypes about protected groups of workers find their way into the workplace and into the litigation process. Employers treated black plaintiffs as potentially criminally dangerous. Interviewee Franklin Williams was led out of work in handcuffs. Inside counsel referred to an African-American plaintiff as “trying to hold us up” in making a race discrimination claim, thus equating the plaintiff’s behavior with theft.
Another stereotype reinforced through litigation was of black women as overbearing and angry. Annie Daley complained to her supervisor that subordinates called her “a black bitch.” When she went to the human resources department to complain that her supervisor was doing nothing in response, she was fired two weeks later. When we interviewed defense counsel in the case, she said the plaintiff came across in a deposition as “sort of bitchy.”
The polarization produced by the adversarial process encourages defendant employers and their counsels to present plaintiffs in the worst possible light. Stereotypes are one readily accessible way to tarnish individuals as problem employees with illegitimate claims. Plaintiffs lawyers are also influenced by these stereotypes when they weigh whether to take a case and in advising clients on such critical matters as whether to accept a settlement or go to trial.
One purpose of a litigation-based system of rights enforcement is to encourage employers to root out discriminatory processes. As we noted above, although most large employers have anti-discrimination policies and inside counsel and HR professionals to apply them, employer defendants tend to circle the wagons in response to a legal claim.
Settlements—the predominant outcome of cases—also serve to reinforce social inequalities and buffer the workplace from change. Settlements typically include a confidentiality clause that prevents plaintiffs from discussing the terms of the settlement or disparaging management. As a result, there is seldom a feedback loop from litigation to the workplace that might highlight issues identified in a case. This functions to isolate the discrimination dispute from the workplace and forestall reform. Management maintains control over information about allegations of discrimination.
