The National Employment Lawyers Association (NELA), which
is the employee-side lawyers' organization, just released a study called Judicial
Hostility to Workers' Rights: The Case for Professional Diversity on the
Federal Bench. The statistics confirm what every employment law
practitioner knows already: federal courts are mostly a terrible place for
From 1979-2006, the plaintiff win rate for employment
cases (15 percent) was lower than non-employment cases (51 percent).
For cases going to trial, employment discrimination
plaintiffs (28.47 percent) won less often than other plaintiffs (44.94
Employees succeeded on appeal only 9 percent of the
time, while employers won 41 percent of appeals.
Judicial Hostility, p. 4.
The report points to the lack of federal judges who, as lawyers, actually
represented, you know, people. I don't mean corporations, which are now
considered by the same federal bench to be people. I mean living, breathing
Employees face all kinds of judge-created obstacles. The report cites a few (my
colleagues and I could probably name a dozen more):
Judicial Hostility, p. 5.
The report cites to one other factor peculiar to federal courts: summary
judgment. The fact is that summary judgment standards in federal court result
in very few employment cases actually making it to trial.
Judicial Hostility, p. 8.
The report recommends that the President appoint judges from diverse professional
backgrounds. The lack of judges who have worked for non-profit organizations
that assist the poor and judges who have represented plaintiffs in employment
and civil rights cases certainly skews the bench to the employer side.
I have another suggestion. Congress needs to step in. When the bench creates
obstacles, Congress can lift them. They've done it with the Lilly Ledbetter
Fair Pay Act, the ADA Amendments Act, and the VOW to Hire Heroes Act. They can
fix some more of these problems by making the standards for proving and winning
discrimination cases clear; by laying out the burden of proof for both
plaintiffs and defendants so it's not open to hostile interpretation; and by
eliminating the judge-created doctrines that make employment law cases
ridiculously hard to win.
Do you want change? Contact your member of Congress. Send them this report.
Tell them that it's their job to make sure hard-working Americans don't get
short-changed in federal court.
See more employment law posts on Donna
Ballman's blog, Screw You Guys, I'm Going Home.
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