Federal Courts Criticized for Dismissive Treatment of Employment Discrimination Victims

There is overwhelming evidence that federal courts for years have ignored and marginalized plaintiffs in employment discrimination cases.

Judge Richard A. Posner, one of the nation’s leading appellate judges, recently resigned from the 7th Circuit U.S. Court of Appeals citing his disgust for the dismissive treatment that his fellow jurists accorded to pro se litigants. The vast majority of pro se litigants are victims of a justice system that is too expensive for all but a privileged few. Most Americans cannot afford to hire an attorney and either must proceed on their own or passively suffer gross injustice. Posner told abovethelaw.com that pro se litigants “deserve a better shake.”

Posner says judges divert the cases of pro se litigants to staff attorneys and then routinely dismiss the case after the employer files a motion for summary judgment.

In addition to Posner, attorneys for the Center for the Study of Law and Religion at Emory University School of Law are questioning the high rate of dismissals in lawsuits involving employment discrimination. They filed an amicus brief last month that points to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.

The win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

According to the authors, the disproportionate rate of dismissal of employment discrimination cases “raises serious questions about procedural and substantive fairness, and the proper role of judges and juries.” They say the wholesale dismissal of employment discrimination cases may violate the plaintiff’s right under the Seventh Amendment to a trial by jury and the key principles of common law upon which the Seventh Amendment rests.

The brief was written by Emory Law School Professor Mark Goldfeder, civil rights attorney David I. Schoen and Center doctoral student Anton Sorkin, also an attorney. The brief argues the 11th Circuit should revive a lawsuit filed by Jerberbee Jefferson against Sewon American Inc.  Jefferson claims she was fired because she complained she was denied a job because the company wanted to hire a Korean worker.

Here are some excerpts from the brief:

  • “Without a jury trial – where plaintiffs/employees tend to do better – the evidence is left to the sole discretion of a judicial fact finder who typically rules in favor of defendants/employers.”
  • “While there remains skepticism that summary judgment is unconstitutional per se, Appellants are right to question the misapplication of summary judgment in employment discrimination claims especially given its predominate use and advantage to employers.”
  • “The advantages of trial by jury may just help reduce … the doomed effort to ‘eliminate the personality of the judge’ by giving opportunity to test the credibility and weight of witness testimonies through cross-examination.”
  • Summary judgment has evolved into a “de facto bench trial without any of the constitutional protections that an actual trial affords.”

The authors cite as a “classic example” of injustice the case of Abeles v. Metropolitan Washington Airports Authority, 676 Fed. Appx. 170 (11th Cir. 2017). Summary judgement was granted against the appellant after she missed a day of work for Passover, which she had observed for more than 20 years. She complained she was fired for alleged insubordination and failing to properly notify her employer in the prescribed manner.

Why haven’t federal courts addressed evidence they routinely discriminate against employment discrimination plaintiffs?

The federal court system is a closed and insular system and lacks effective citizen review. Congress passes the judiciary’s budget but seldom questions their activities. The titular head of the system is the U.S. Supreme Court, which still refuses to allow cameras in its courtroom,  essentially choosing to keep the general public in the dark about its proceedings. In other words, the federal court system is largely unaccountable to the public.

I sent a message to the Administrative Office of the U.S. Courts on Monday asking: “Has the Court or is the Court going to review ongoing concerns about the disproportionate rate of dismissal on motion for summary judgment in employment discrimination cases.” I’ll let you know if I get a response (don’t hold your breath.)

U.S. Chamber of Commerce No “Friend of the Court”

Nice to see someone calling out the U.S. Chamber of Commerce, which frequently inserts itself into national litigation as a “friend of the court.”

In reality, the Chamber is almost always an advocate for a dues paying corporate member and espouses a position that is anti-employee and anti-consumer. In 2014, I argued the Chamber was a federal court lobbyist.

According to Reuters, the firm of Lieff Cabraser Heimann & Bernstein has opposed  the Chamber’s request to file an amicus or “friend of the court” brief in a case involving a challenge by Direct TV to the certification of a class action by the 11th Circuit Court of Appeals in Atlanta.  Lieff’s brief argues the Chamber, the Chamber’s lawyers, DirectTV and Direct TV’s lawyers are bound so closely together that even under a liberal reading of the definition of an amicus curiae, the Chamber cannot legitimately be regarded as a friend of the court.

“The Chamber is not merely a friend of the party, but essentially the party itself.” – Lieff Cabraser Heimann & Bernstein

The Chamber has lobbied for years behind the scenes to limit workers’ rights.

The Chamber played a role in a decision earlier this year by the 11th Circuit to limit the scope of the Age Discrimination in Employment Act of 1967.  The 11th Circuit ruled the ADEA does not prevent employers from adopting policies that discriminate against older workers in hiring. The Chamber argued that systemic age discrimination in hiring represents sound policy and is reasonable.

The Chamber taunted the EEOC, noting that the EEOC operates a hiring program that discriminates on the basis of age.

In February,another law firm attempted to block a Chamber amicus brief backing Johnson & Johnson in a 5th Circuit appeal of a hip implant jury verdict. The 5th Circuit allowed the brief to be filed.

Age Discrimination by Feds Violates U.S. Constitution and Universal Declaration of Human Rights

It would seem to be patently illegal to accord lesser treatment to discrimination victims on the basis of age as opposed to race, sex, religion, color and national origin.

Yet, this is the law of our land.

The U.S. Supreme Court has consistently ruled that older workers are entitled to less protection from age discrimination than victims of discrimination the basis of race, sex, color, national origin and religion.  The U.S. Congress 50 years ago adopted the Age Discrimination in Employment Act, which is far weaker than Title VII of the Civil Rights Act of 1963. The U.S. Office of Personnel Management has operated a discriminatory hiring program for years, depriving older workers of tens of thousands of job.

And now the EEOC, the regulatory agency charged with protecting older workers from age discrimination, has sanctioned second-class treatment of older workers in hiring by the federal government.

It’s hard to square legalized age discrimination with the Equal Protection Clause of the Fourteenth Amendment, which says no state shall deny to any person within its jurisdiction “the equal protection of the laws.”  The Equal Protection Clause is extended to the federal government through the Fifth Amendment Due Process Clause. And it’s even harder to square legalized age discrimination with the Universal Declaration of Human Rights, Article 23, which declares: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” The U.S. was a leader in the movement to adopt the Universal Declaration of Human Rights in 1948.

The U.S. Supreme Court bases its unequal treatment of older workers on an absurd falsity.

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Support for American Workers is Hard to Find

Who will stand up for the rights of American workers?

GOP President Donald Trump and the GOP-led U.S. Congress seem to be determined to eliminate worker rights rather than to expand them. Trump has reversed a bevy of pro-labor measures that former Democratic President Barack Obama enacted on his own without Congressional backing. Meanwhile, workers continue to seethe about mostly Democratic trade policies that sent American jobs to other countries.

Labor unions are barely hanging on, despite the fact that unions pioneered many of the employment benefits that workers take for granted today. In 2016, the union rate for private sector workers was 6.4 percent – down from 20.1 percent in 1983.  Organized labor is currently battling a potentially crippling effort by Trump and the GOP to prevent unions from requiring nonmembers to pay representation fees.

It may be an understatement to say that advocacy of worker rights  does not appear to be high on the agendas of the Equal Employment Opportunity Commission and US. Department of Labor.

Under the Democratic administration of President Barack Obama,  the EEOC shifted its focus away from filing lawsuits and prosecuting employers who engaged in illegal discrimination. Instead, the EEOC is focused on providing free dispute resolution services to these very same employers. Mediation is often a lousy deal for discrimination victims, who walk away with a pittance to compensate for the loss of a decent job, but it’s always a great deal for employers, who avoid potentially catastrophic fees and damages stemming from a lawsuit.  Also, mediation is completely secret so other potential litigants are kept in the dark.  Meanwhile, the EEOC has for years ignored one of the most pressing civil rights issues of our day – blatant and epidemic age discrimination in hiring that is particularly devastating to older women, who suffer twice the poverty rate of men in their old age.  The EEOC received more than 20,000 age discrimination complaints in 2016; it  filed only TWO lawsuits with “age discrimination claims.”

The EEOC last month upheld an administrative ruling permitting a hiring officer to completely disregard objective qualifications and make hiring decisions based solely upon his subjective perception of  “cultural fit.”

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