Employees Have an Uphill Battle to Win Discrimination Claims. Is There Appellate Court Bias?

A study by two Cornell Law School professors confirms what many employment lawyers intuitively understand: employment discrimination plaintiffs find it more difficult to prevail than other plaintiffs. As noted on lawmemo.com, the study is now available on-line. The authors write:

Employment discrimination plaintiffs have a tough row to hoe. They manage many fewer happy resolutions early in litigation, and so they have to proceed toward trial more often. They win a lower proportion of cases during pre-trial and at trial. Then, more of their successful cases are appealed. On appeal, they have a harder time upholding their successes and reversing adverse outcomes.

Some of the key (post-1991) findings of the Cornell Study are:

1. Employment cases spend an average of 410 days on the court's docket, compared to 354 days for all other plaintiff categories.
2. About 50% of non-employment cases are resolved early in the litigation process, compared to only 35% of employment cases.
3. Employment plaintiffs obtain summary judgment in about 2% of cases, compared to 22% of other plaintiffs.
   
4. At trial, employment plaintiffs prevail in about 37% of jury trials and 21% of bench trials compared to 45% and 46% respectively for other plaintiffs.

But it is the results at the appellate level that are perhaps the most intriguing. According to the study, losing defendants in employment discrimination cases are able to obtain a reversal from the court of appeals in 42% of cases, while losing plaintiffs prevail on appeal only about 10% percent of the time. The spread between defendants and plaintiffs in other types of cases is much smaller. What accounts for the success of the defendants?

The authors believe they have unearthed an "anti-plaintiff effect" in the federal appellate courts. In essence, most employment discrimination cases that reach the trial stage turn on the intent of the employer, and "intent" is a factual issue that depends on witness credibility. If an employee plaintiff proves to the satisaction of the factfinder that the employer's decisions were motivated by wrongful intent, "that finding should be largely immune from appellate reversal, just as defendants' trial victories are largely immune from reversal." In other words, appellate courts are supposed to focus on the legal framework applied by the district court, deferring to the trier of fact on issues of fact. But according to the Cornell study, appellate courts unduly favor employers by stepping outside the usual boundaries for reversing the result of a trial.

You can download the complete research paper here.