ACSBlog: The Blog of the American Constitution Society

ACS hosted a panel discussion on a new article published in the Harvard Law and Policy Review that concluded that workers bringing employment discrimination lawsuits increasingly fare poorly in the federal courts.

Studying data from the Administrative Office of the United States Courts, authors Stewart J. Schwab, dean of the Cornell Law School, and Kevin M. Clermont, law professor at the Cornell Law School, found that “the federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts.” The authors concluded that they’ve “unearthed an anti-plaintiff effect that is troublesome.”

Click on the picture below to watch video from the event.

ACS Executive Director Lisa Brown introduced the September 18, 2008 panel discussion and the panelists, who included:

• Moderator, Judge Nathaniel R. Jones, Blank Rome LLP, who also served as a judge on the U.S. Court of Appeals for the Sixth Circuit
• Article author Stewart J. Schwab, Allan R. Tessler Dean and Professor of Law, Cornell University Law School
• Cyrus Mehri, a founding Partner of Mehri & Skalet, PLLC
• Wade Henderson, President and CEO, Leadership Conference on Civil Rights
• Eric Dreiband, Jones Day, and former General Counsel, U.S. Equal Employment Opportunity Commission

Highlights from the report include the following findings:

• As a result of the likelihood of unfavorable rulings in employment discrimination cases, more employees are declining to bring actions in federal court. Over seven years, 1999-2007, there has been a drop of 37 percent in the number of cases brought by plaintiffs.
• Employment cases fare much worse than other types of cases that are filed. Between 1979 and 2006, the win rate for plaintiffs in job discrimination cases in the federal court system was 15 percent, in contrast to 51 percent for non-jobs related cases.
• Employment discrimination plaintiffs are not likely to experience any greater success at the appeals court level. Data reveal that plaintiffs who lose at trial achieve reversals in less than nine percent of their cases. In contrast, defendants who lose at the trial court level are granted reversals in 41 percent of their cases.