Many judges do not like handling employment cases. This is bad for employers and employees alike.
First, it is beyond reasonable dispute that many Federal judges do not like handling employment cases. The first time I came directly across this was at a National Employment Lawyers Association convention in New Orleans when a member asked a panel of Federal appellate judges why employment cases seemed to fare so poorly. Judge Robert Parker of the Fifth Circuit answered that we all needed to understand that we practiced in a disfavored branch of law. This has been confirmed in several studies in the Federal courts. One of the most useful is the Report of the Working Committees to the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts, 54 NEW YORK UNIV. ANNUAL SURVEY AMERICAN LAW (1997) 124, 342-44, which is quoted below.
Second, the resulting decisions from judges who dislike this branch of the law can be unpredictable and eccentric. Unpredictable decisions are bad for employers and employees alike, regardless of who wins, because they provide no safe harbor for employers, no solid means for employees to distinguish between suits with a solid chance of success and those with little or none, no guide for either side in settlement values, and no real-world vetting of the adequacy of employers’ efforts to prevent problems or of employers’ systems to handling employee complaints.
Roll-of-the-dice random decisions simply engender roll-of-the-dice random challenges and increase overall litigation and expense. They deprive both sides of justice and fail to give employers and employees the real-world feedback they need.
Arbitrators, however, have chosen to handle the types of cases you have. This makes them more likely than judges to focus on the actual merits.
However, confidentiality — unless waived by both sides — still prevents other employees from learning what happened.
Excerpts from the Report of the Working Committees to the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts, 54 NEW YORK UNIV. ANNUAL SURVEY AMERICAN LAW (1997) 124, 342-44:
E. EMPLOYMENT DISCRIMINATION AND SEXUAL HARASSMENT
An area of litigation that generated a large number of spontaneous complaints and concerns from lawyers was employment discrimination – a category in which minorities and women make up a high percentage of the litigants. Although various specific problems surfaced in focus groups and other settings, the common refrain that summed them up was that judges “don’t like” these cases. One attorney reported that a federal judge referred (rather pungently) to her role as legal counsel in discrimination cases as “skunk work.” When judges and attorneys, including those otherwise enthusiastic in their praise for the generally high standards of fairness observed in federal courts, were queried about the accuracy of the assertion that employment cases are disfavored, many agreed with the proposition. One white male lawyer who does not himself practice employment discrimination law, summed up the problem as follows:
You constantly hear judges say that there are whole categories of cases that don’t belong in federal courts … I think if you polled judges, you would find that they think discrimination claims are the most dubious of the cases that actually go to trial. It surely seems that federal judges don’t like them, and I wonder how this affects the perception that potential litigants have of the fairness of the courts.
Because of the frequency of such comments, and the fact that the both the Ninth Circuit gender and the D.C. Circuit’s gender, race, and ethnicity studies identified employment discrimination cases as a highly problematic area, the Committees took a variety of approaches to investigating the question of fairness to litigants in these cases. Two groups of attorneys, representing both plaintiffs and employers, were interviewed to get input from those most familiar with these cases. Questions about the treatment of employment discrimination cases were asked during interviews with a sampling of judges; an attempt also was made to inquire into the attitudes of judges through the judicial questionnaire. Preliminary examinations of empirical data were made to look for any available clues about the possibility that the “dislike” was real and that it [*343] might translate into some level of unfairness in the handling of the cases. It is important, however, to stress what is meant by an examination of fairness in this context. We do not mean an inquiry into the fairness of rules of substantive law applied by the courts of the Second Circuit. Rather, we mean to ask if, within the confines of the applicable law, these cases receive evenhanded and unbiased hearings on a level comparable to, for example, a contract or a securities or an intellectual property case.
We start by noting that, to the extent that judges, in fact, do dislike employment discrimination cases – a proposition we could not explore directly 492 or comprehensively – a variety of explanations can be posited. Some judges who agree that their colleagues are unhappy with these cases to attribute the discontent to the fact that plaintiffs in them often appear pro se, and do not understand the law or the court’s procedures. Many federal judges also appear to believe that the proliferation of small cases involving individual claimants clog up the federal courts and divert judges’ attention from larger, purportedly more significant, civil cases. Others express concern that rapidly growing caseloads demand larger and larger numbers of judges and destroy the collegiality and cohesiveness of the federal bench. The recently issued Long Range Plan for the Federal Courts, for example, recommended that much of the litigation by individuals be diverted to state courts or be handled to a greater extent by administrative agencies. This recommendation obviously would affect more than employment discrimination litigation. However, it is also true that prominent among the recommendations in the report was a specific one that cases involving “economic or personal relations or personal liability arising in the workforce” be among those largely eliminated from federal litigation. 493 However, the concerns that emerged were not only those of judicial efficiency. One judge reported that colleagues criticize the employment discrimination area as “highly emotional,” and [*344] speculated that highly emotional might well be a code phrase for “female.”
Some insight into other reasons for the apparent negativity of some judges toward employment discrimination cases can be gained from an article that appeared three years ago in the New York Times. The author, a former federal judge, complained that discrimination cases are an unjustifiable consumer of judicial time because they are: “rarely settled, are characterized by high levels of acrimony and subjective claims of victimization; they are immensely time-consuming and are controlled by legal standards that, lacking sufficient precision, are overgeneralized and of marginal use.” 494
Other judges privately agreed that this article captured the views of colleagues who thought the cases too resistant to settlement and too “small potatoes.” Others, however, characterized the source of distaste a bit differently, pointing out that, in their experience, the strongest cases do settle, leaving the least meritorious claims for trial.
493 Another target of the report was diversity cases, again often involving individual claimants in tort suits. Interestingly, these are another category of federal cases in which minorities and women are also believed to be more heavily clustered.
494 Kenneth Conboy, Trouble in Foley Square, N.Y. Times, Dec. 27, 1993, at A17.