Law & Society Review recently published a new study on employment discrimination litigation in April 2012 in called “Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation” (Law & Society Review, Vol 46:1, pgs 1-36). Click here to access the article, which will be available for free download on the Law & Society Review website until 2013. The article is well worth a read for corporate counsel focused on complex discrimination litigation because it provides a unique view of various perspectives from the litigation process about whether employment discrimination litigation is fair.
Co-authored by sociologists Ellen C. Berrey, Steve G. Hoffman and Laura Beth Nielsen, the article features the researchers’ findings from 100 interviews with a variety of participants in employment discrimination lawsuits – including in-house counsel, human resources professionals, plaintiffs, and defendants – during three phases of the litigation process (entering litigation, staying in litigation, and resolving cases). The stated purpose of the interviews was to study the changing dynamics of employment discrimination litigation on an empirical basis, the types of cases that succeed in litigation, and parties’ perceptions of anti-discrimination law. Using the interviews, the article explores perceptions of fairness in the context of employment discrimination litigation. Notably, the authors utilize on-line media to share their research and make twenty-two audio interviews with the actual plaintiffs and defendants in the cases studied, accessible through the online article. (See Law & Society Review, Vol 46:1, pgs 1-36).
According to the study, defendants’ representatives and plaintiffs agree that “discrimination litigation is exceedingly unfair.” Id. at 4. Rather than sharing a complaint, however, each side sees unfairness only in what is to their particular disadvantage. Employer-defendants find unfairness in the fact that an employee has the power to initiate what they consider a “meritless” suit against the company to which they are required to respond, and in which plaintiffs have no “skin in the game.” Id. at 12-15. Defendants are primarily concerned that “problem employees” can easily “hijack” the legal system because they fail to properly understand discrimination law, and the legal system unfairly empowers workers to make unsubstantiated claims. Id. Employer-defendants further suggested that “discrimination is rare” in reality, and the legal system fails to recognize that employers properly address inappropriate behavior in the rare case when it does occur. Id.
In comparison, plaintiffs begin the litigation process optimistically because they turn to the legal system with a belief that the law will be fair. Id. at 15-17. The study finds, however, that they face significant obstacles in prosecuting their claims. Id. Contrary to their expectations, plaintiffs often find an opaque bureaucracy in state fair employment practices agencies, and rarely get a final ruling based on the substantive merits of a case. Id. In addition, plaintiffs face obstacles like incompetent lawyers, steep financial costs, a “maze” of litigation, and personal burdens. Id. at 20-24. Even when a case is settled, plaintiffs largely feel “disappointed” by the final resolutions of their cases because a significant percentage hoped to get or keep their jobs, or obtain clear resolution for the perceived workplace issue that caused the litigation as compared to a monetary settlement. Id. These experiences cause plaintiffs to view the process as unfairly biased in favor of defendant-employers.
The article has a focus on employment discrimination claims in litigation, but the findings have broader relevance to employment litigators, including pre-litigation disputes and negotiations. For example, it reminds defendants to appreciate a plaintiff’s perspective in evaluating how a case might be resolved. In some cases, plaintiffs may seek relief beyond monetary consideration to address the underlying workplace dispute that led to litigation. Plaintiffs also bring to cases expectations and assumptions about how the law “should” work, as compared to an understanding of how it actually works. A disconnect between an employer’s evaluation of a case – from a perspective that evaluates the business impact of losing a case – and a plaintiff’s abstract expectations and assumptions underlying the basis for their legal action, could certainly shape the proposed terms of settlement and/or a litigation strategy. Thus, approaching all phases of litigation – including settlement discussions, litigation communications, and trial strategy – with the various perspectives identified in the article could facilitate a faster, cost-effective and more satisfactory resolution of litigation for all parties.
Its good food for thought, and another pertinent data point for defense of workplace class action litigation.