Why are employment discrimination cases so hard to win?

Louisiana Law Review

Volumn 61, Issue 3, 2001, Pages 555-574

  Selmi, Michael ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 26044433803     PISSN: 00246859     EISSN: None     Source Type: Journal    
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References (81)

1. 530 U.S. 133, 120 S. Ct. 2097 (2000) (unanimously reversing Fifth Circuit Court of Appeals).
2. See Cleveland v. Policy Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597 (1999) (reversing Fifth Circuit Court of Appeals by holding that accepting disability payments does not automatically preclude a claim under the Americans With Disabilities Act); Robinson v. Shell Oil Co., 519 U.S. 337, 117 S. Ct. 843 (1997) (reversing Fourth Circuit Court of Appeals by holding that applicants for employment are covered by Title VII); Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202, 117 S. Ct. 660 (1997) (reversing Seventh Circuit Court of Appeals regarding the method by which employees are counted for purposes of Title VII jurisdiction); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307 (1996) (reversing Fourth Circuit Court of Appeals by holding that an age discrimination plaintiff can proceed with a claim even where the plaintiff was replaced by someone who is over 40 years old).
3. See Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483 (1994) (holding that the damage provisions of the 1991 Civil Rights Act could not be applied retroactively).
4. 509 U.S. 502, 113 S. Ct. 2743 (1993). For cases interpreting Hicks to require some proof beyond pretext for a plaintiff to succeed on a claim see Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc); Hidalgo v. Overseas Condado Ins. Agencies, 120 F.3d 328 (1st Cir. 1997); Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc).
5. 509 U.S. at 511, 113 S. Ct. at 2749 (emphasis in original and citations omitted).
6. Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc); Hidalgo v. Overseas Condado Ins. Agencies, 120 F.3d 328 (1st Cir. 1997); Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc).
7. Lever v. Northwestern Univ., 979 F.2d 552, 554 (7th Cir. 1992) ("No rule of law says that employees win all close cases.").
8. See. e.g., Richard Epstein, Forbidden Grounds (1992);
9. Philip K. Howard, The Death of Common Sense (1994);
10. Walter K. Olson, The Excuse Factory: How Employment Law is Paralyzing the American Workplace (1997).
11. There have also been a large number of books challenging the notion that discrimination remains an important part of contemporary society that have sold remarkably well and which were often financed by private conservative research groups. The best known of these is Richard J. Hernstein & Charles Murray's The Bell Curve: Intelligence and Class Structure in American Life (1994) a book that became a best-seller despite its obvious and exposed flaws. Shelby Steele, then an English Professor at the relatively unknown San Jose State University, gained national attention and best-seller status with his book The Content of Our Character: A New Vision of Race in America (1991), and linguist John McWhorter has likewise achieved much acclaim for his book Losing the Race: Self-Sabotage in Black America (2000). Ironically, despite their message, the primary credential Professors Steele and McWhorter brought to their work was their race; although both are African Americans, neither had previously written on race, and neither concentrated on race in their professional disciplines. All of these books, however, have sold much better than their liberal counterparts, with the possible exception of Andrew Hacker's book entitled Two Nations, published in 1991. The role of conservative philanthropical groups is evident in these works: Shelby Steele is now a Professor at the conservative Hoover Institution, Walter Olson works out of the conservative Manhattan Institute, as does Abigail Thernstrom who published along with her husband Stephan Thermstrom the influential America in Black & White: One Nation, Indivisible (1997), which is a rosy-colored portrait of race relations in America wrapped around an anti-affirmative action message.
12. See Michael Selmi, The Value of the EEOC: Reexamining the Agency's Role in Employment Discrimination Law, 57 Ohio St. L.J. 1 (1996).
13. In 1990, for example, 6,936 employment discrimination cases were filed in federal court, whereas by 1998 the numbers had increased to 21,540, roughly equivalent to the number of cases filed in the two previous years. See Bureau of Justice Statistics, Civil Rights Complaints in U.S. District Courts, 1990-98, at 4 Table 3 (Jan. 2000).
14. In 1998, there were 256,787 cases filed in federal court. Id. at 2, Table 1.
15. See Selmi, supra note 9, at 13. The numbers vary by year, ranging during the period 1992-99 from a high of 16.5 percent of claimants obtained some relief from the process in 1999, to a low of 9.1 percent in 1996. See U.S. Equal Employment Opportunity Comm'n, Charge Data on All Statutes, FY 1992-FY 1999.
16. In its 1998 Annual Report on Judicial Selection, the Alliance for Justice commented, "In an effort to nominate 'safe' individuals who would be easily confirmed by the partisan Senate, President Clinton appointed moderate judges and few nominees with any public interest background." Alliance for Justice, Judicial Selection Project Annual Report 1998, at 3. For example, "only one judge confirmed in 1998 had experience working full-time in a public interest law organization." Id. at 8.
17. In 1990 and 1991, there were more than 600 cases filed in which the United States was a plaintiff, whereas during the rest of the 90s the case filings tended to hover around 400 cases, with a high of 497 in 1993 and a low of 289 in 1996. See Bureau of Justice Statistics, supra note 10, at 4, Table 4. See also Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing and Employment, 45 UCLA L. Rev. 1401, 1427-35 (1998).
18. The database can be accessed at http://teddy.law.cornell.edu:8090/questata.htm.
19. These categories were chosen primarily because they included sizable numbers of cases and were roughly comparable in their substance to provide a reasonable basis for comparison. I also sought to compare medical malpractice cases, which have a trial success rate that is more comparable to employment discrimination cases, but the database included relatively few medical malpractice cases since most are filed in state court. For employment discrimination cases, I included only those cases where the jurisdiction was based on a federal question, to screen out employment cases premised on a diversity basis that may not involve discrimination issues, whereas for insurance and personal injury cases I relied on the jurisdictional category "all bases."
20. There are also fewer cases defined as "other" among the employment cases, which suggests that the employment cases offer a more complete picture of the set of cases disposed of in federal court.
21. See. e.g., Bureau of Justice Statistics, Civil Trial Cases and Verdicts in Large Counties, 1996 at 1 (Sept. 1999) ("Overall, plaintiffs won in 52 percent of trial cases."); Bureau of Justice Statistics, Civil Jury Cases and Verdicts in Large Counties: Civil Justice Survey of State Courts 1992 (plaintiffs won 52 percent of cases surveyed). The 50 percent success rate is consistent with what is known as the Priest-Klien hypothesis, which predicted that close cases are most likely to go to trial and because of that selection the cases were likely to split evenly among defendants and plaintiffs. See George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984).
22. It should be noted that success rates vary by the nature of the case. For two recent discussions of success rates and surveys of some of the past studies see Leandra Lederman, Which Cases Go to Trial?: An Empirical Study of Predictors of Failure to Settle, 49 Case W. Res. 315, 322-24 (1999);
23. Daniel Kessler et al., Explaining Deviations from the Fifty Percent Rule: A Multimodel Approach to the Selection of Cases for Litigation, 25 J. Legal Stud. 233, 236-42 (1996).
24. I have not sought to determine whether these differences are statistically significant since I have not had direct access to the database and do not want to imply greater confidence in the results than might be warranted by providing a measure of confidence, and have opted instead to focus on the relative percentages.
25. See Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases, 77 Geo. L.J. 1567 (1989).
26. See Ruth Colker, The Americans With Disabilities Act: A Windfall for Defendants, 34 Harv. C.R.- C.L. Rev. 99, 100 (1999).
27. Id. at 108.
28. See Study Finds Employers Win Most ADA Title I Judicial and Administrative Complaints, 22 Mental & Physical Disabling L. Rep. 403 (1998).
29. On the nature of unconscious discrimination in the employment setting see, for example, Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination in Equal Employment Opportunity, 47 Stan. L. Rev. 1161 (1995);
30. Amy L. Wax, Discrimination as Accident, 74 Ind. L.J. 1129 (1999);
31. Virginia Valian, Why So Slow? The Advancement of Women (1999).
32. This has long been the message of the legal realists and critical legal studies scholars. For a recent work along these lines that concludes that we should remove many constitutional issues from the courts' jurisdiction see Mark Tushnet, Taking the Constitution Away from the Courts (1999).
33. In particular, Justice Powell seems to have been influenced by the work of now Judge Richard Posner and Willian Van Alstyne, two prominent early critics of affirmative action. I discuss these themes in Michael Selmi, Remedying Societal Discrimination Through the Government's Spending Power (2001) (unpublished manuscript on file with the author).
34. For an interesting explanation of the influence of Judge Posner and interest group political theory on Justice Powell, see Keith J. Bybee, The Political Significance of Legal Ambiguity: The Case of Affirmative Action, 34 Law & Soc'y Rev. 263 (2000).
35. See Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 281-82 (1997).
36. See id.
37. The Supreme Court noted the importance of eradicating subtle discrimination as early as 1969, in an important voting rights case interpreting the mandate of the Voting Rights Act of 1965. See Allen v. Board of Elections, 393 U.S. 544, 565, 89 S. Ct 817, 831 (1969) (noting that section 5 of the Voting Rights Act was "aimed at subtle, as well as the obvious, state regulations. . .").
38. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2743 (1993).
39. This latter fact, which seems potentially quite relevant, was never mentioned in the Supreme Court opinions, but was noted in a footnote by the Court of Appeals. See Hicks v. St. Mary's Honor Ctr., 970 F.2d 487, 490 n.6 (8th Cir. 1992). The Court of Appeals explained: Plaintiff also introduced evidence at trial of a study performed in 1980 and 1981 of two honor centers in St. Louis and Kansas City. According to the district court's findings, this study concluded that "too many blacks were in positions of power at St. Mary's, and that the potential for subversion of the superintendent's power, if the staff became racially polarized, was very real." However, none of the witnesses for the defense admitted to being aware of the study at the time of the 1984 personnel changes at St. Mary's. Id. (citation omitted).
40. See Hicks v. St. Mary's Honor Ctr., 756 F. Supp. 1244, 1251-52 (E.D. Mo. 1991). Indeed, the District Court Judge, who incidentally was Rush Limbaugh's uncle, went to great lengths to dispute all of the evidence Hicks had introduced.
41. See Hicks, 509 U.S. at 542, 113 S. Ct. at 2766 (Souter, J., dissenting) (noting that in identifying personal animosity as a possible explanation, the district court "failed to recognize [that it] might be racially motivated").
42. See George Rutherglen, From Race to Age: The Expanding Scope of Employment Discrimination Law, 24 J. Legal Stud. 491 (1995).
43. Id. at 493 (documenting that among discrimination plaintiffs, age discrimination plaintiffs had incomes nearly twice as high as others).
44. I discuss this rationale for the prima facie case in Selmi, supra note 27, at 324-28.
45. Id. at 326-28.
46. The argument was originally articulated by Professor Edward Lazear, and is typically discussed in standard labor economics textbooks. See. e.g., Ronald G. Ehrenberg & Robert S. Smith, Modern Labor Economics 398-402 (6th ed. 1997);
47. Edward Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261 (1979).
48. Two works of legal scholars discussing the nature of age discrimination are Stewart J. Schwab, Life-Cycle Justice: Accomodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8 (1993) and
49. Samuel Issacharoff & Erica Worth Harris, Is Age Discrimination Really Age Discrimination? The ADEA's Unnatural Solution, 72 N.Y.U. L. Rev. 780 (1997).
50. Compare Katz v. Regents of the Univ., 229 F.3d 831 (9th Cir. 2000) (allowing disparate impact cause of action) with Mullin v. Raytheon Co., 164 F.3d 696, 703 (1st Cir. 1999) (holding that ADEA does not provide cause of action for disparate impact).
51. Leonard v. Rolette County, No. 99-2130, 1999 U.S. App. LEXIS 29732 (8th Cir. Nov. 12, 1999) (per curiam); Charla Keck v. New York State Office of Alcoholism & Substance Abuse Servs., 10 F. Supp.2d 194 (N.D.N.Y. 1998) (alleging allergies to tobacco and perfume); Patricia Homeyer v. Stanley Tulchin Assocs., No. 95 C 4439, 1995 U.S. Dist. LEXIS 17114 (N.D. Ill. Nov. 17, 1995) (alleging sensitivity to smoking).
52. See Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555 (N.D. Ga. 1995) (alleging environmental sensitivity including to perfume); Boren v. Wolverine Tube, Inc., 966 F. Supp. 457 (N.D. Miss. 1997) (allergic reaction to a chemical in the workplace); Comber v. Prologue, Inc., No. JFM-99-2637, 2000 U.S. Dist. LEXIS 16331 (D. Md. Sept. 28, 2000) (among other ailments, alleged chemical sensitivity).
53. See Anderson v. North Dakota State Hosp., 232 F.3d 634 (8th Cir. 2000).
54. See Crandall v. Paralyzed Veterans of America, 146 F.3d 894 (D.C. Cir. 1998).
55. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999).
56. For example, the chemical sensitivity claims, which originated under the Fair Housing Act Amendments of 1988, have been uniformly unsuccessful. See Comber v. Prologue, Inc., No. JFM-99-2637, 2000 U.S. Dist. LEXIS 16331 (D. Md. Sept. 28, 2000) (granting summary judgment for defendant on disability claims including chemical sensitivity syndrome); Keck v. New York State Office of Alcoholism and Substance Abuse Servs., 10 F. Supp.2d 194 (N.D.N.Y. 1998) (finding that plaintiff had stated a claim with respect to perfume allergy but granting defendant's motion for summary judgment); Boren v. Wolverine Tube, Inc., 966 F. Supp. 457 (N.D. Miss. 1997) (granting summary judgment for defendant on plaintiff's claim to allergic chemical reaction); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555 (N.D. Ga. 1995) (granting defendant's summary judgment motion on environmental chemical sensitivity claim).
57. See Murphy v. United Parcel Service., 527 U.S. 516, 119 S. Ct. 2133 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162 (1999).
58. Sutton, 527 U.S. at 471, 119 S. Ct. at 2139.
59. The Court's decision, which relies on prefatory information in the legislative history and ranks as one of their more unpersuasive employment decisions, supports the notion that the Court was destined to rule against the plaintiffs.
60. See, e.g., Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000) (finding that police officer who suffered from severe depression treatable through medication was not disabled); Epstein v. Kalvin-Miller Int'l Inc., 100 F. Supp.2d 222 (S.D.N.Y. 2000) (diabetes not a covered disability because treatable); Arnold v. City of Appleton, 97 F. Supp.2d 937 (E.D. Wis. 2000) (epilepsy not covered disability); Eibest v. Planned Parenthood, 94 F. Supp.2d 873 (N.D. Ohio 2000) (Epstein-Barr disease did not cause substantial limitation in light of Sutton).
61. A 1998 poll conducted by the Washington Post found that 40 percent of respondents would like to return to the gender roles of the 1950s. See Richard Morin & Megan Rosenfeld, With More Equity, More Sweat, The Washington Post, Mar. 22, 1998, at A1.
62. At the end of 1999, 80 percent of the federal judges were men. See Alliance for Justice, Judicial Selection Process Annual Report 1999, at 15.
63. See Joan Williams, Unbending Gender: Why Family and Work Conflict and What To Do About It (2000) (discussing the limitations of existing doctrine).
64. The most famous case along these lines is the failed litigation against Sears Roebuck, where very few women found their way into commission jobs. See EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1988). A more recent example was found in the District Court opinion exonerating the venerable restaurant Joe's Stone Crab which did not hire women to work on the dining room waitstaff. The decision was reversed on appeal. See EEOC v. Joe's Stone Crab, 220 F.3d 1263 (11th Cir. 2000).
65. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986) and Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367 (1993).
66. See Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998).
67. See Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270.
68. For example, according to the Administrative Office of the Courts data, the median jury award in an employment discrimination suit during 1997 was $160,000.
69. The increased prospect of damages creates competing incentives for attorneys. Now that cases are worth more, employers may be more apt to spend money litigating them, which may also be true for plaintiffs' attorneys who are more willing to invest in the cases. Alternately, the higher damage possibility may also lead to more settlements as defendants may seek to limit their damages exposure. See Selmi, supra note 9, at 35-37.
70. See Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559 (7th Cir. 1987) ("Because the district court confused mistake with 'pretext,' its decision may not stand.").
71. See Wax, supra note 24.
72. I have discussed some of these issues previously. See Michael Selmi, Discrimination as Accident: Old Whine, New Bottle, 74 Ind. L.J. 1233 (1999) (responding to Professor Wax), and
73. Michael Selmi, Testing for Equality: Merit, Efficiency, and the Affirmative Action Debate, 42 UCLA L. Rev. 1251 (1995).
74. This is obviously a broad statement for which there are many exceptions and caveats. However, some of the more interesting decisions on the subtlety of discrimination have been authored by Timothy Lewis, a Republican African-American appointee to the Third Circuit, who seems to bring a distinct perspective to his opinions. See, e.g., Aman v. Cort Furniture, 85 F.3d 1074, 1081-84 (3rd Cir. 1996).
75. See. e.g., Todd D. Peterson, Studying the Impact of Race and Ethnicity in the Federal Courts, 64 Geo. Wash. L. Rev. 173 (1996).
76. See. e.g., Keith Reeves, Voting Hopes or Fears? White Voters, Black Candidates and Racial Politics in America 4 (1997) ("[A]n overwhelming majority of white Americans believe that blacks in fact have an equal chance to succeed in life.");
77. see generally Jennifer L. Hochschild, Facing Up to the American Dream (1995) (discussing the many differences among whites and black on matters of race).
78. See Michael Selmi, The Facts of Affirmative Action, Reviewing ne Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, 85 Va. L. Rev. 697, 738-39 (1999).
79. Expert testimony by social psychologist Susan Fiske was an essential part of the famous case of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989). More recently, testimony has been used to document how discrimination can be decoded from events where direct evidence is lacking. See Erin Texeira, The Subtle Clues of Racism, Los Angeles Times, Jan. 11, 2001, at A-1 (describing testimony of David Wellman).
80. See Selmi, supra note 27, at 330 (discussing Court's past precedent). I worked on an amicus brief in the Hicks case and in my research concluded that the Court's doctrine was, in fact, ambiguous on the appropriate inference that should be drawn based on proof of pretext As the Court noted in Hicks, the most significant case was probably the little-known and little-cited United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478 (1983). But what was most clear based on the Court's precedent is that "the Court had never paid close attention to the distinction between pretext and pretext for discrimination." Selmi, supra note 27, at 330.
81. Connell v. Consolidated Edison, No. 98 Civ. 5717 (DC), 2000 U.S. Dist LEXIS 11857, at *16 (S.D.N.Y. Aug. 16, 2000) (quoting Reeves); Cumbow v. Exxon Corp., No. 97-2797 Section "T" (5), 2000 U.S. Dist LEXIS 14153 (E.D. La. Sept 20, 2000) (same); Mercer v. City of Cedar Rapids, 104 F. Supp.2d 1130, 1161 (N.D. Iowa 2000) (same). See also Williams v. Dictaphone Corp., 112 F. Supp.2d 267, 281 (W.D.N.Y. 2000) (suggesting Reeves did not add anything to the doctrine); Sacavage v. Jefferson Univ. Physicians, No. 99-3870, 2000 U.S. Dist LEXIS 9917 (E.D. Pa. July 17, 2000) (finding that Reeves did not alter pretext analysis). Professor Zimmer's contribution to this symposium presents a far more comprehensive review of the existing case law and explores the latest cases more thoroughly. See Michael Zimmer, The Slicing and Dicing of Individual Disparate Treatment Law, 61 La. L. Rev. 575 (2001).