Alex Blaze

ENDA won't matter

Filed By Alex Blaze | September 19, 2008 2:00 PM | comments

Filed in: Politics
Tags: American Constitution Society, Appeals Court, employment discrimination, ENDA, federal court, Harvard Law Review, study, success, trans-inclusion, trial, workplace discrimination

Or, more accurately, it won't matter unless we do something about federal judges, according to a new study by the American Constitution Society.

Nevertheless, we should disclose at the outset our concluding view that results in the federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts. Our study of the federal district courts shows employment discrimination plaintiffs bringing many fewer cases now. Those cases proceed and terminate less favorably for plaintiffs than other kinds of cases. Plaintiffs who appeal their losses or face appeal of their victories again fare remarkably poorly in the circuit courts. The fear of judicial bias at both the lower and the appellate court levels may be discouraging potential employment discrimination plaintiffs from seeking relief in the federal courts.

The study highlights several hurdles that federal employment discrimination cases have to surpass that have increased in recent years. Among them were the overwhelmingly likeliness that they'd be dismissed before trial (less than 4% of these suits don't get dismissed, compared to around 20% of non-employment discrimination cases), a lower win rate in non-jury cases, and, if they do win, a larger chance than other cases of being overturned in appeals. All this has caused fewer people, since 1998, to even try to win their case in court.

The entire study on employment discrimination is worth the read.

The LGBT community keeps on pushing to get ENDA through a Congress that obviously doesn't want it to pass, and I think we're getting caught up in a piece of legislation that already has so many holes in it that many LGBT workers would have no protections at all.

But even if that legislation were to pass, it would still have to be enforced in federal court. Republicans since Reagan have been great, though, about stacking federal courts at all levels with pro-business judges who are biased against employment discrimination cases, making it so hard to prove this sort of discrimination that you're probably out of luck if you don't have a letter from your employer, signed and notarized, telling you that you were fired for being a protected minority.

Consider how hard it is to win one of these cases, even if someone has decided to brave the odds and go to trial:

The most significant observation about the district courts' adjudication of these cases is the long-run lack of success for employment discrimination plaintiffs relative to other plaintiffs. Over the period of 1979-2006 in federal court, the plaintiff win rate for jobs cases (15%) was lower than that for nonjobs cases (51%).[...]

The gap in win rates between employment discrimination plaintiffs and other plaintiffs appears, for example, in pretrial adjudication.66 Display 14 shows the fairly persistent gap over time, even while the win rate for pretrial adjudication was trending down in all cases. Over the period of 1979-2006 in federal court, employment discrimination plaintiffs have won 3.59% of their pretrial adjudications, while other plaintiffs have won 21.05% of their pretrial adjudications.

Of course, defendants make many more motions for summary judgment, and succeed on them more often, than do plaintiffs.67 So one would expect a low plaintiff win rate in pretrial adjudication, as this number reflects the percentage of cases terminated by motion in the plaintiff's favor rather than in the defendant's favor. Still, the difference in win rates between jobs cases and nonjobs cases shows that pretrial adjudication particularly disfavors employment discrimination plaintiffs.68

And then it's far more likely to get overturned in favor of the defendant (employer) than in favor of the plaintiff (discriminated-against employee):

For a plaintiff victorious at trial in an employment discrimination case, the appellate process offers a chance of retaining victory that cannot meaningfully be distinguished from a coin flip.23 Meanwhile, a defendant victorious at trial can be assured of retaining that victory after appeal. Defendants, in sharp contrast to plaintiffs, emerge from appellate court in a much better position than they were in when they left trial court. In this surprising plaintiff/defendant difference in the federal courts of appeals, we have unearthed an antiplaintiff effect that is troublesome.

The vulnerability on appeal of jobs plaintiffs' relatively few trial victories is more startling in light of the nature of these cases and the applicable standard of review. The bulk of employment discrimination cases turn on intent, and not on disparate impact.24 The subtle question of the defendant's intent is likely to be the key issue in a nonfrivolous employment discrimination case that reaches trial, putting the credibility of witnesses into play. When the plaintiff has convinced the factfinder of the defendant's wrongful intent, that finding should be largely immune from appellate reversal, just as defendants' trial victories are. Reversal of plaintiffs' trial victories in employment discrimination cases should be unusually uncommon. Yet we find the opposite.[...]

Appellate judges may perceive trial courts as pro-plaintiff. An appellate court consequently would be more favorably disposed to a defendant than would be a trial judge and jury. This appellate favoritism would be appropriate if the trial courts were in fact biased in favor of plaintiffs. Yet employment discrimination plaintiffs constitute one of the least successful plaintiff classes at the district court level, in that they win a very small percentage of their actions and fare worse than almost any other category of civil case.26 If district courts were biased in favor of employment discrimination plaintiffs and still produced such a low plaintiff win rate, they would have to be starting with a class of cases truly abysmal or plaintiffs. More likely, district courts process employment discrimination cases with a neutral or even jaundiced eye toward plaintiffs.27 As empirical evidence accumulates to refute trial court bias toward plaintiffs,28 any perceptions held by appellate judges that such a bias exists appear increasingly to be misperceptions.

Alternatively, unconscious biases may be at work at the appellate level. Perhaps appellate judges' distance from the trial process creates an environment in which it is easy to discount harms to the plaintiff.29 The biases do not have to be peculiar to appellate judges, however. Litigation-reform propaganda may have made us all a bit anti-plaintiff.30 No matter the source, because the appellate court acts after the trial court's biases have played out, any appellate biases would produce an anti-plaintiff effect on appeal. Recall that the selection effect is quite limited at the appellate stage.

Judges appear to be worried that juries will be biased against employers, even though the data don't support that claim. But they're doing their work to make sure that even though we have laws on the books protecting against discrimination, that they can't be enforced.

This is why Barney Frank famously said that trans-inclusion in hate crimes legislation is easier than trans-inclusion in the ENDA: throwing people in jail is something politicians, Democratic or Republican, love to do, protecting workers isn't.


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Thank you so, so much for pointing this out Alex.

It leaves one wondering if the push for ENDA isn't coming out of a priviliged worldview where of course the system will work and of course the courts will protect us.

It's sad to see trans activists fail to question/challenge this ideology as they push for a more inclusive ENDA. How much more could be gained, and solidarity built, if we were challenging the fundamentals of the system rather than the surface?

Nick, Could you please explain your trans activist statement? It seems to me it would be more accurate to say LGBT activist. This article is no less applicable to the exclusionary ENDA then the inclusive one.

This is what a law review article a few years back termed the 'anti-anti-discrimination agenda.'

It is real.

However, even if lawsuits are shortcircuited by conservative activist judges, the fact that the law (ENDA) would be on the books would still encourage employers not to engage in activity that the plain language of the law would proscribe.

Unless, of course, employers, like everyone and their brother, know that it won't be enforced, so they do nothing.

Not saying that ENDA shouldn't be passed, but just that we have another hurdle to overcome at the same time.

I will disagree with the title. ENDA is a rung, not the ladder. It will matter, but does have subsequent hurdles to overcome, such as the changes in the hearts and minds of the judges, as well as society. In the short term, it will at least be a signal and a deterrent that can be pointed to.

From what I've seen, discrimination cases are always difficult, because of the intangible nature of proving causality. Diane Schroer's case is a refreshing exception. Most of the time, employers can dig up a whole bunch of bogus excuses for firing someone to satisfy the innocent-until-proven-guilty part, or at least don't give a clear enough discriminatory action or statement at the time of firing / refusal to hire to be concretely actionable in court. Quite often, these laws are about sending the signal and providing the deterrent moreso than providing actual protection.

It does not mean they are ineffective. The instances in which ENDA-like legislation works as a deterrent do not end up in court, so we will never know those statistics.

I agree that these cases are harder to win, even if judges weren't biased against them. They require proving the intent of an employer, which can be hard to do, especially since the employer is the one with the money and resources to dig up whatever.

But I'm wondering how it can be an effective deterrent if employers know they won't end up in court, or that if they do, they won't lose.

I think the Ledbetter case is a good example. A woman was paid less than men who were doing the same job - much less - and she was one of the lucky few who got to trial court and then won that case showing that she was paid less because of her sex. Her employers, I'm sure, had 800 reasons made up on the spot for why she was paid less, but the court found that they were wrong so they found in favor of her story.

But they appealed to the Supreme Court and there the judges created a new hoop for Ledbetter to jump through (that she had to prove that the pay discrimination started in the previous 180 days, which it did not). Previous similar cases only had to prove that the pay discrimination happened in the previous 180 days, not that it started in the time period. She lost her case in the end.

So, obviously her employer discriminated against a class that was protected from job discrimination since forever. They did it flatly and blatantly. And they knew that if they went to court, they'd win. And then her employer sent her the bill for their legal fees.

I'm just sayin' that when this legislation does get passed, there's another hurdle to overcome to make sure that it will have an effect. Because employers are blatantly discriminating against protected minorities right now and the government isn't doing anything to stop them.

I will disagree with the title. ENDA is a rung, not the ladder. It will matter, but does have subsequent hurdles to overcome, such as the changes in the hearts and minds of the judges, as well as society. In the short term, it will at least be a signal and a deterrent that can be pointed to.

From what I've seen, discrimination cases are always difficult, because of the intangible nature of proving causality. Diane Schroer's case is a refreshing exception. Most of the time, employers can dig up a whole bunch of bogus excuses for firing someone to satisfy the innocent-until-proven-guilty part, or at least don't give a clear enough discriminatory action or statement at the time of firing / refusal to hire to be concretely actionable in court. Quite often, these laws are about sending the signal and providing the deterrent moreso than providing actual protection.

It does not mean they are ineffective. The instances in which ENDA-like legislation works as a deterrent do not end up in court, so we will never know those statistics.