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.

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Appeals Court Strikes a Blow for Unrepresented Litigants

A federal appeals court recently struck a blow for the unrepresented litigant, who often is  ill-equipped to understand and overcome procedural hurdles that effectively block access  to federal courts.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago,  reinstated a case that was dismissed by a district judge because the handwritten complaint filed by the plaintiff, who was representing himself, contained “little more than conclusory legal jargon.” Moreover, the judge said, the plaintiff checked a “variety of boxes “with “conclusory statements such as that the Defendant failed to reasonably accommodate the plaintiff’s disabilities.”

The plaintiff, John Tate, was a driver trainee in 2014 for SCR Medical Transportation, which provides non-emergency transportation services for disabled persons and veterans.  His complaint states: “The defendant was aware of my disability. During my employment, I was subjected to sexual harassment. I complained to no avail.” Tate  alleges he was fired in retaliation for his complaint. He alleges discrimination on the basis of disability, sexual harassment and retaliation.

The appeals court said Tate filled out a complaint form supplied by the  court that “does not require, or indeed permit, extensive factual detail, for it provides only six lines for listing ‘the facts supporting the plaintiff’s claim of discrimination.'”  Also, the appeals court said, the judge made a “serious mistake”  by dismissing Tate’s lawsuit prior to the expiration of a 21-day period  during which a plaintiff may file an amended complaint without the court’s approval.

The panel’s decision, written by noted jurist Richard Posner,  states that the lower court judge “should have told the plaintiff what is required to allege disability discrimination.”

Rather than dismissing the case, the judge should have helped the pro se complainant correct the procedural defect in the complaint.

The panel said Tate had no obligation to be more specific with respect to his claim of sexual harassment or retaliation.  The panel agreed,  however, that  the Americans with Disabilities Act requires a plaintiff to allege that s/he is disabled within the meaning of the Act. The panel said Tate should have identified a specific disability.

“Had the judge told the plaintiff before dismissing his suit what was missing from the complaint, or had he dismissed just the complaint and not the suit and informed the plaintiff of a plaintiff’s right to rectify the deficiencies of his complaint in an amended complaint, we might have been spared this appeal, and the district judge a remand,” concluded the panel.

Posner, an expert in the area of law and economics, is one of the most cited legal scholar of the 20th century.

The case is TATE , v. SCR MEDICAL TRANSPORTATION, No. 15–1447 (7th Cir. December 28, 2015).