03/05/2012 11:49:00 AM EST
Despite What Some Think, Employers Do Not Set Out to Discriminate
At her cleverly-named employee-side blog, Donna Ballman reported
on a study published by the National Employment Lawyers Association-an association of
plaintiff-side employment lawyers-which concluded that plaintiffs only win 15%
of employment cases in federal courts. When Donna compared that number to the
51% win-rate in non-employment cases, she concluded that federal judges are hostile to plaintiffs in employment cases.
Donna's post led to the following Twitter conversation
management-side attorney Jeff Nowak, and me:
I do not believe that federal court judges (or any set of
judges, for that matter) possess a predisposed hostility towards plaintiffs in
employment cases. To the contrary, the low win-rate of plaintiffs in these
cases is more explained by the fact that most employers simply do not
When I think back over my 15-year career representing
employers, I can think only of a few (2 or 3) that set out to discriminate
against an employee. (To be fair, many more committed sins of ignorance, acting
not out of malice, but out of inexperience with the complexities of the myriad
employment laws they are charged with understanding and following.) The reality
is that lawsuits can result from well-intentioned employers making
well-intentioned personnel decisions.
We live in a society where people are quick to blame
others for their mistakes. People choose to litigate instead of accepting their
own responsibility for a job loss. These ideas more likely explain the 15%
win-rate for plaintiffs than any judicial predispositions for employers.
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