Juries Decide Federal Employment Cases: Who Cares if Judges Don’t Like Them?
The Wall Street Journal ran an article a month ago that referenced a paper by Kevin M. Clermont & Stewart J. Schwab published in the Harvard Law & Policy Review entitled “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?“ The gist of the paper is that “federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts.”
My reaction one month ago, and my reaction now is an admittedly flippant, “Who cares? Juries decide these cases.” Any employment lawyer worth her fee is going to litigate her discrimination case in front of a jury. Jurors have all been employees at one time or another and they have more empathy towards aggrieved employees than do federal judges who represent the the upper strata of an inherently conservative profession.
Based on my review of Messrs. Clermont and Schwab’s data, there is no significant difference between employment cases litigated before a jury and non-employment cases litigated before a jury. Accordingly, provided you’re in front of a jury, an employee is going to get the same chance for justice that an anti-trust plaintiff is.
At the end of the day, I question the assertion that plaintiff’s lawyers are discouraged from filing employment lawsuits because of judicial hostility to their claims. The fact is that federal litigation, due to unduly broad discovery, is simply cost prohibitive for most parties and Messrs. Clermont and Schwab acknowledge this fact when graphing the general decline of federal trials overall.
If Congress were to increase the compensatory damage and punitive damage caps under Title VII, the ADA, and GINA tomorrow, or tie these damage caps to inflation, then I believe we would see a noticeable uptick in federal employment litigation since the return on investment in these cases might be higher. http://writ.news.findlaw.com/grossman/20081125.html
Last 5 posts by Ross Molho
- Employers Who Conciliate in Glass Houses Shouldn’t Throw Stones - December 29th, 2009
- COBRA Subsidy Extended - December 22nd, 2009
- Illinois Employers Face Greater Liability for Managers Who Engage in Sexual Harassment - June 16th, 2009
- The Arbitration Fairness Act of 2009: No Arbitration and No Fairness - May 29th, 2009
- Department of Labor Publishes Model COBRA Notices - March 19th, 2009
Tags: Employment Law