Minnesota Lawyer Blog

A study released by The American Constitution Society for Law and Policy yesterday corroborates the practice of many plaintiffs’ employment lawyers to avoid federal court like the plague.

The report, to be published by the Harvard Law & Policy Review, shows that workers bringing employment discrimination lawsuits increasingly fare poorly in the federal courts.

The authors of the report -- Stewart J. Schwab and Kevin M. Clermont, both with the Cornell Law School -- studied data from the Administrative Office of the U.S. Courts, and concluded that they have “unearthed an anti-plaintiff effect that is troublesome.”

Highlights from the study, “Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?” include:
-- As a result of the likelihood of unfavorable rulings in employment discrimination cases, more employees are declining to bring actions in federal court. Over seven years, 1999-2007, there has been a drop of 37 percent in the number of cases brought by plaintiffs.
-- Employment cases fare much worse than other types of cases that are filed. Between 1979 and 2006, the win rate for plaintiffs in job discrimination cases in the federal court system was 15 percent, in contrast to 51 percent for non-job related cases.
-- Employment discrimination plaintiffs are not likely to experience any greater success at the appeals court level. Data reveal that plaintiffs who lose at trial achieve reversals in less than 9 percent of their cases. In contrast, defendants who lose at the trial court level are granted reversals in 41 percent of their cases.

The findings of the study will be a subject of a Senate Judiciary Committee hearing on the federal courts scheduled for next Tuesday.

I don’t think the results of this report are much of a surprise, especially to employment lawyers. For years, I’ve been hearing from plaintiffs’ attorneys (and some defense attorneys who will admit it) that federal court is not the place to bring an employment discrimination claim. I’m sure this study will at least validate their feelings on the issue.