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.