A study published last month in the Harvard Law & Policy Review proves something I’ve stressed in classes for many years, based on anecdotal experience: winning a federal employment discrimination claim is a long shot. Based on data from 1979-2006 the study reports:
- Federal employment discrimination plaintiffs won 15% of their cases, compared to the 51% win rate for other federal civil plaintiffs;
- 12.5% of federal employment discrimination cases end in summary judgment; employers sought summary judgment in 90% of those cases. In contrast, 3% of contract cases and 1.7% of personal-injury and property-damage cases ended in summary judgment.
- By applying a “plausibility” standard to the pleadings Federal judges “routinely terminate employment-discrimination cases through motions to dismiss” (according to the 19-Feb Wall Street Journal article titled “Job-Discrimination Cases Tend to Fare Poorly in Federal Court”).
- From 1999 to 2007 federal employment-discrimination cases declined by 40%.
The Journal article offered a number of reasons for the low success rate: the difficulty of proving an employment discrimination claim “which,” the article notes, “is rately overt;” employer willingness to settle credible suits quickly; employment practices that lessen the incidence of employment discrimination; and better record-keeping that documents non-discriminatory grounds for employment termination.