The Harvard Law and Policy Review, the Official Journal of the American Constitution Society for Law and Policy, cites what seems to be a generally bad track record for the fair handling of plaintiff’s employment cases in the Federal Courts.
As an employment practitioner in New Jersey, I am fortunate enough to have an excellent New Jersey statutory system protecting worker’s rights, most known of which are the Law Against Discrimination (LAD) and the Conscientious Employee Protection Act (CEPA). These statutes allow me to go to New Jersey Courts in order to handle those statutory claims. Once in a while, however, because we are dealing with citizens of different states (for example, my client is a worker in a New Jersey setting, but the company is based outside of New Jersey), I am forced by the defense to fight the matter in Federal Court.
The Harvard study deals with all of the federal courts across the United States, but it is important to understand how the Federal Courts are organized in order to appreciate how the study affects your rights in New Jersey.
The Federal Courts are divided into a number of “circuits” which each contain a certain number of states and territories. New Jersey belongs to the Third Circuit. In each Circuit, all of the individual district trial courts send appeals to the appropriate Circuit Court. So, therefore, if you were to file an appeal from the decision of a Federal District Court in New Jersey, you would go to the Third Circuit Court of Appeals. If you still felt aggrieved after that, you would appeal to the United States Supreme Court from the Third Circuit.
Obviously, each Judge is his or her own person, and each district and each circuit are individual entities. Yet the study identifies some very troubling overall trends.
These are ominous findings, and not to be lightly cast aside, no matter what your political or cultural meanings may be. Obviously, people without integrity will argue against this study on the grounds that the finding itself is biased (anything that comes out of an Ivy league university is usually attacked by the right wing) or on the grounds that the study is too vague or doesn’t take into account other factors. Obviously, someone who is committed enough to ignoring the truth – for whatever reason, perhaps because it serves their interest to do so – will certainly find a way to ignore this study. Yet the study is compelling and unsettling.
From 1979 through 2006, federal plaintiffs won only 15 percent of job discrimination cases. By comparison, plaintiffs in cases not involving job discrimination won 51 percent of the time. That’s a startling disparity. The study asks many difficult and troubling questions about why this disparity might occur. Some wonder about whether or not it’s a lack of minorities on the bench, others wonder whether or not the burdens of proving job discrimination are simply too high to be fair, and still others cite a variety of reasons ranging from the short periods of time that plaintiffs are given to gather evidence in federal court to the infiltration of corporate and other vested financial interests controlling the judicial appointment process.
Obviously, employment defense lawyers see no reason to agree with the study. An attorney at Proskauer Rose, an employment defense firm, was quoted in a recent article commenting upon the study; “if it’s a real case, they settle, employers aren’t dumb.” This comment, of course, pre-supposes that all defendants readily settle meritorious claims – they don’t – and that any claim which doesn’t settle must lack merit.
I of course take issue with this comment, although I don’t personally know the attorney to whom the comment is attributed. Obviously it is all very easy for a defense lawyer to say something like that. On the other hand, what the comment doesn’t acknowledge is the fact that defense firms attempt to “paper” plaintiffs to death in most cases. They attempt to assassinate the plaintiff’s character, make investigation into jobs that the plaintiff had both before and after the affected job in the case, and in other ways seek to intimidate that plaintiff – and other plaintiffs – from filing valid lawsuits. In addition, many defense firms and their clients take the view that if they settle any case, then they appear to be a “soft target” for other individuals who would then bring more groundless claims.
No, I’m afraid that comment by the defense lawyer doesn’t fairly portray the employment rights warfront at all; we here at the firm would know, as we’re there fighting, every day.
Yet even as an employment lawyer exclusively representing plaintiffs, I am not entirely unsympathetic to what the attorney says. Clearly, if you look at a large enough population sample – there are over 300 million people in the United States – you are going to find idiots of every stripe. There are certainly cases in every area of the law – filed by corporations as well as by individuals – which lack merit and which ought not to have been filed. There are, however, in employment cases, many defenses which lack merit, as well as there are defense tactics which lack merit and/or which are unfair, that are pursued without hesitation. Documents are purposely withheld and/or destroyed, forcing plaintiffs to endure constant Motion practice in order to obtain the documents, which Motions of course have the effect of exhausting and rendering irritable Judges who finally “give up” and stop rendering fair decisions.
This tactic is akin to the first kid in the back seat who keeps irritating the second kid, causing the parent, eventually, to blame the second kid when he yells ‘ouch’ one too many times.
In many states plaintiff’s employment practitioners have been paring down or even eliminating their practices, leaving victims of discrimination and retaliatory whistle blowing to the mercy of less capable attorneys and/or to the vagaries of the EEOC and/or state administrative agencies.
Of course, in states like New Jersey, where there exist powerful state statutes protecting workplace rights which tend to at least duplicate if not go father than the federal statutes, there is usually no reason to go to Federal Court in the first instance, unless a plaintiff is moved there involuntarily by a defendant on the grounds of different citizenship of the parties or for other reasons, as noted above.
I am also not suggesting that there is an inherently unfair approach taken by New Jersey judges in Federal Courts. I know the New Jersey magistrates and judges attempt to be fair. The problem is that they are working with a system of court rules which is not fair, at least not in my view. For example, in New Jersey, when I file an employment discrimination case in State Court, I am given 450 days of discovery in order to gather the proofs I need to win. On the other hand, in Federal Court, the initial discovery schedules are significantly shorter than that, and this of course inures to the detriment of the plaintiff, whose burden it is to gather evidence to prove their case. What seems fair – the fact that there is a short discovery clock which affects both parties – actually isn’t fair, because it is really the plaintiff that bears the burden of proof and if both sides are deprived of the opportunity to gather evidence, it is usually the plaintiff that is going to suffer.
Another example of the inherent unfairness of the federal system in my view is the easy Summary Judgment standard that defendants need to meet in order to dismiss cases. No matter how fair minded a Judge wishes to be, they must follow the law. If the law itself is flawed, as I contend that federal summary judgment standards are, it is simply more difficult for a plaintiff to survive the summary judgment process. In the State Courts of New Jersey, on the other hand, the process is simply more fair, because the law has been written in a fairer way and judges are compelled to follow it.
After I read the article about this study on line, I took a look at the “comments” posted by individuals on line who had read the comments. These are also very troubling. People seem to be very impatient with the idea that social justice is still something for which the United States should strive. They seem to feel – and I’m certain that many of these people are Christian white males who’ve never known what it’s like to suffer discrimination – that the United States is “just fine” and that women, racial minorities, disabled individuals and other historically disenfranchised individuals ought to just “suck it up” and accept the fact that discrimination is institutionalized. As a white male myself, I am embarrassed by such an attitude. The people who have been benefitting from unfair standards ought to be the first people who want to change those standards. It’s easy not to see a problem when it doesn’t affect you, or worse, when the practice benefits you at someone else’s expense. I’d like to hope that many of these commentators don’t live in New Jersey, and I’d like to hope that they don’t show up on our juries.
Think about fairness as it affects people other than yourself and think about whether or not it’s time to start changing the people who in turn have the power to change the federal judicial system. It was envisioned as a check and balance against the legislative and executive power. It’s supposed to be fair. The statistics suggest otherwise.