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.)

The Big Short in the Federal Courts

I recently saw an unsettling movie, The Big Short, about the blatant fraud and corruption on Wall Street  that led to the  global economic collapse and the.Great Recession.

Like many film goers, I felt deeply troubled about the Titanic-sized failure of the American government to protect ordinary Americans from predatory behavior and  criminality by Wall Street bankers and brokers.  But later my thoughts turned to another failure that  is currently being ignored by American government and the press, one that I see as an attorney who writes about  the law and workers who are victims of abuse and discrimination in employment.

There has been undisputed and powerful evidence for years that the federal court system, like America’s  financial system, operates to benefit powerful moneyed interests at the expense of ordinary American workers.  A major indicator of this trend is that federal courts routinely dismiss employment discrimination lawsuits at a far higher rate than other types of business lawsuits.

My book, Betrayed: The Legalization of Age Discrimination in the Workplace, painstakingly documents how the U.S. Congress and  Supreme Court have made it inordinately difficult for workers to prevail in an age discrimination lawsuit.  The Age Discrimination in Employment Act of 1967 ia weak and riddled with loopholes compared to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, national origin and color. The U.S. Supreme Court issued a completely unnecessary ruling in 2009 requiring that age discrimination victims  prove a far higher level of causation than is required under Title VII.  A proposed federal law that would fix the Court’s disastrous ruling has languished in a Congressional committee for six years.  Congress and the Court have legalized discrimination in employment based on age that would be illegal if the victim wore a hijab or hailed from Zimbabwe or Yemen.

At one point last spring, I attempted to contact the Judicial Conference of the United States, a 16-member body (with no citizen representative) that ostensibly runs the federal court system. I wanted to point out that discriminating against employment discrimination victims is tantamount to actual discrimination. I found the Conference’s web site but it contained no contact information. A spokesperson for the Administrative Office of the U.S. Courts (AOC)  suggested that I send my correspondence to the federal circuit court in my jurisdiction, which has a seat on the Conference body.  In exasperation, I submitted  an “open letter” to whom it might concern requesting legal reform via a web form on the AOC web site. I have concluded, rightly or wrongly, that the “leadership” of our federal court system is unapproachable.

In the movie, The Big Short, some savvy observers figured out the housing market was about to collapse and they found a way to make money on the collapse.  It seems likely to me that one day the “bubble” surrounding the federal court system will burst.  Just as there was almost universal faith in the housing market, Americans historically  have shown a high degree of trust in the courts.  That trust is eroded every time the court permits  unscrupulous employers to use the legal system to deny workers respect, dignity and fundamental fairness.

Trust is lost when courts permit employers to use the legal system as a weapon against American workers.

Meanwhile,  President Barack Obama  encouraged age discrimination in hiring when he signed an executive order in 2010 that permits federal agencies to bypass older workers and hire “recent” graduates and  U.S. Labor Secretary Thomas Perez earlier this year endorsed a private initiative by America’s largest corporations that openly discriminates against older workers. The federal government is the nation’s largest employer.

All of this  is happening in plain sight but it has gone largely unreported by the tattered shreds of what remains of America’s once vigorous media.  (I may sound a bit cynical on this score because the 18th richest man in the world, Sheldon Adelson,  a casino operator and major Republican donor who owns a free newspaper in Israel, recently secretly purchased  Nevada’s largest newspaper and immediately began testing the limits of journalism ethics.)

Like the housing market bubble, the bubble in the federal court system is attributable in large part to inattention, neglect and failure of accountability. [Read more…]