The Wall Street Journal Blog and Paper has a story this week analyzing whether job discrimination plaintiffs get a raw deal in federal court
The WSJ piece examines that question, citing recent studies that show discrimination plaintiffs lose at a higher rate in federal court than other plaintiffs and more often get tossed out of court on summary judgments.
"From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy."
This is certainly not news to those of us that work in the employment law trenches day in and day out. Employment law is a different animal than most other types of cases that courts have to deal with. Often what is at issue is not what action was taken by an employer but rather what was in the decision-maker's heart when the action was taken. This has led to some pretty tortured legal tests and summary judgment standards across the country. And, the simple truth of the matter is that many judges have a reflexive dislike for the subjective nature of the cases. I think this gets reflected in judges being quicker to substitute their judgment for that of a jury in these types of cases.
The WSJ Blog article ends with a quote from a New York lawyer lamenting that plaintiff-side employment cases have gotten so hard to win that his firm won't take them anymore. I think this may be going overboard a bit. Employment cases are certainly not for the faint of heart but they are winnable.
One issue which may be contributing to this statistical anomaly is the fact that many employment cases are filed pro se or by lawyers who are not employment law specialists. This likely leads to a great many cases that are not properly prepared to face the defendant's inevitable motion for dismissal.
Representing a plaintiff in an employment-related lawsuit takes determination, hard work and a specialized knowledge of state and federal employment statutes and case law. Employment cases are nothing like personal injury cases. In my opinion, this is not an area of the law where lawyers should "dabble." The practice is chock full of counter-intuitive legal standards and procedural traps waiting for the unwary practitioner.
Source: WSJ Blog
Hat Tip: Ross Runkel
Coming Soon: I am working on a longer post discussing what you should keep in mind when looking for an employment law specialist to handle your case. Watch for it.