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Zimmer on Ricci

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Mike Zimmer (Loyola), co-author of the leading casebook on employment discrimination and friend of the blog has provided these thoughts on the Supreme Court’s Ricci decision from yesterday.

1. The Holding. The defendants’ decision to not use test results because their use would have meant that no African-American and only two Hispanics, who made up over half of the testtakers, would be promoted was intentional disparate treatment discrimination against the white testtakers who would have been promoted if the test results had been used. That the adverse impact of the test results amounted to a prima facie case of disparate impact discrimination was not a defense to a disparate treatment case unless the employer has a strong basis in evidence to believe that it will be liable for disparate impact discrimination.

2. A Procedurally Unusual Decision. The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial. The four slip opinions run a total of 89 pages; 31 pages – 38% of the total — deal with relatively straight forward recitation of facts, most of which are quite constested.  Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

3. Acting When the Race of Those Affected is Intentional Discrimination. The key factual finding of the Court is that: “All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed compared to white candidates. . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. . . . [T]he city made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law.  For example, in Justice O’Connor’s concurrence in Price v. Waterhouse, she indicated that, “Race and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral and nondiscriminatory fashion.”

Justice Alito is convinced that, because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law. Justice Ginsburg argues that the decision may have been made “because of politics” and not race since the white firefighters and their union were vociferous advocates for using the test. The decision may have been because of race or because of politics or because of some of each. Doesn’t this suggest a factual question that deserves a trial?

4. Should the African-American and Hispanic Testakers Claim Disparate Treatment Discrimination? Suppose that New Haven now uses the results of the tests and promotes some white firefighters. Because the City knew the race of those promoted, was that intentional discrimination against minority testakers who were not promoted? If not, why not? Is using the test results to promote people different from deciding not to use them?

The Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion), and Ricci appears to import that into Title VII. These decisions involve challenges by whites to the use of race in a way that gives advantages to minority group members or, as here, removes an absolute impediment to the advancement of African-Americans and Hispanics. If a color-blind standard can be used by white plaintiffs, why can’t these minority firefighters rely on it?

5. Is Proof of Intent to Discriminate Reduced to Proving the Defendant Knew the Race of the Affected Individuals? Is racial consciousness, when acted upon, the same as acting with an intent to discriminate? If so, Ricci revolutionizes discrimination law. Assume an African-American applies but is rejected for a job after an interview. Does she establish defendant’s liability by getting the defendant’s interviewer to admit that she was conscious of the fact that the plaintiff is black?

6. The Strong Basis in Evidence Justification. In United States v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996) (en banc), cert. dismissed, 522 U.S. 1010 (1997), the court had imported equal protection analysis into Title VII’s treatment of affirmative action. Does the Court’s adoption of the strong basis in evidence test effectively implement that importation?  Only Justice Ginsburg in dissent puts this decision into context with the Title VII affirmative action decisions to criticize this decision. Are these affirmative action decisions in jeopardy now?

7. The “Q” Word Strikes Again. Is the fear that employers would have an incentive to use racial quotas what drives this decision?

8. Why Isn’t There Strong Support for Disparate Impact Liability? The Court concluded that, “The racial adverse impact here was signicant, and . . the City was faced with a prima facie case of disparate-impact liability.” The Court then minimizes what that means: “[A] prima facie case of disparate-impact liability – essentially a threshold showing of a significant statistical disparity and nothing more – is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.”  Does this undermine the significance that this prima facie showing shifts both  the burden of proof and of persuasion to the defendant?  Is the Court attempting to reinstate Wards Cove?

9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?

10. Was Section 703(h) Test Provision Superseded by the 1991 Civil Rights Act? The Court does not address the jurisprudence associated with the test exception in original §703(h). Has the Court decided sub silentio that this provision and its underlying jurisprudence has been repealed when Congress codified disparate impact law in new § 703(k)?

11. Were There No Less Discriminatory Alternatives as a Matter of Law? The record showed alternatives that were less discriminatory – simply altering the ratio of written to oral scores appeared to have reduced discriminatory impact in Bridgeport, using “assessment centers” or altering the “rule of three” to a banding approach – all were alternatives that could have been adopted instead of the test that was used.  The Court appears to assume that, because it was too late to adopt any of these alternatives to resuscitate this test, they could not count as alternatives. But, in fact, the City could consider these precisely because it had decided not to use the results of this test.

12. Should the Minority Testtakers Claim Disparate Impact Discrimination? Assuming the City would now use the test results, should the African-American and Hispanic testtakers bring a disparate impact claim? With the Supreme Court deciding as a matter of law that the test was job-related and consistent with business necessity and that there were no less discriminatory alternatives available, is there anything left to contest?

13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?

14. Is This 1989 Redux? It has been twenty years, but has a new conservative majority in the Roberts Court been able to undermine Title VII just as the Rehnquist Court majority did then? Will Justice Ginsburg’s prediction that this decision will not last prove true?  Will this new majority take the step argued by Justice Scalia to embed Ricci in the Constitution by striking down disparate impact analysis as unconstitutional?

About the Author: Mike Zimmer is a law professor at Loyola University Chicago.  One of his main areas of concentration, which includes co-authoring an Aspen casebook, is employment discrimination. He graduated from Marquette Law School, clerked for Judge Fairchild on the 7th Circuit, worked at Foley & Lardner and have taught at a good number of law schools. Zimmer joined the Loyola faculty after 30 years at Seton Hall Law School.

This article originally appeared in Workplace Prof Blog on June 30, 2009. Re-printed with permission by the author.


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Defense Attorneys Make Excuses, But the Outcome is the Same

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When attending the American Constitution Society’s panel following the release of Schwab and Clermont’s seminal report, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, I was expecting the defense representative on the panel to attempt to explain away the results (even in the midst of what has to be silent glee that their side is winning so handily). But no explanation the other side can come up with puts a dent in the basic premise of the report: employment discrimination plaintiffs have it worse than other kinds of plaintiffs in our federal courts.

Cyrus Mehri’s excellent testimony before the Senate Judiciary Committee (Part I, Part II) lays out the new report’s three basic premises:

  • When employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. When employees win at trial, they are reversed 41.10% of the time.
  • There has been an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007.
  • Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53% of the time.

Rather than dealing with why federal district court and appeals court judges might be biased, I guess it’s easier to try to explain away the absolute drop in cases.  And if you’re a defense lawyer, you might try to explain in a way that doesn’t implicate the other two findings, as if the fact that plaintiffs have difficulty winning before trial court judges, and hanging onto even the successes upon appeal, doesn’t have anything to do with it.

Instead, we’re expected to believe some of the following excuses, according to Eric Dreiband, former general counsel of the EEOC, who is now back to representing defendants at Jones Day.  (Listen to Dreiband’s presentation; Windows Media Player required). And another defense-oriented article responding to the study repeats some of the same excuses.

1.  Plaintiff’s attorneys are taking more wage and hour cases under the FLSA.

There has admittedly been a rise in the number of wage and hour cases, especially class actions, brought under the Fair Labor Standards Act in recent years.  Depending on who you ask, there are varying reasons for that, whether it’s because employers are trying to cut corners by misclassifying employees, there’s an increased awareness of the FLSA among workers, making it more likely they’ll ask questions about their classification, or if, as plaintiffs’ attorneys will acknowledge, it’s an act of self-preservation because of the three points detailed above.  Bringing a case under a statute that doesn’t require evidence of intent can be a lot easier than bringing a discrimination case:  either an employer violated the FLSA or it didn’t, and it doesn’t matter what it intended to do as it does in discrimination cases.

But this point is almost irrelevant if you’re one of the hapless plaintiffs with a discrimination case, not a wage and hour case.  Defense attorneys aren’t arguing that it’s impossible for plaintiffs with strong discrimination cases to get a lawyer, because all of the skilled plaintiffs employment lawyers no longer have time to take them, because that’s simply not true.  Bottom line:  the fact that there are now more FLSA cases doesn’t detract at all from the premise that employment discrimination plaintiffs have it bad.  They’re two completely different things that both happen to affect workers.

2. More cases are ending up in arbitration, instead of the courts.

Certainly, there are employers who believe that requiring all of their employees to submit their employment claims to arbitration benefits them, and they’re probably right. As Paul Bland’s excellent blog post reminds us,

“If you want to work here,” millions of employees are told, “you have to agree that any disputes you have with us–even if we cheat you, even if we break our contract or break the Fair Labor Standards Act or a basic civil rights act–will be submitted to binding arbitration with an arbitrator who is chosen by an arbitration company whom we pick. If you don’t like it, you can’t work here.”

Plenty of evidence suggests that just like what’s happening in federal court, employees forced into the arbitration process don’t fare very well. (See Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, Employee Rights and Employment Policy Journal, Vol. 11, No. 2 (2007). In fact, employees forced into arbitration may fare worse there than they do in court, according to Colvin’s piece, the leading academic study of thousands of publicly reported employment cases in arbitration. So again, the fact that more employees have cases in arbitration instead of federal court hardly contradicts the conclusions of the Schwab and Clermont study, when the evidence shows that plaintiffs forced into arbitration are even worse off there than in court.

3. More plaintiffs are going to state court instead of federal court.

In many states, plaintiffs in discrimination cases have the option of choosing between state and federal court, and attorneys must make the strategic decision about where the case is most likely to be successful. Admittedly, strategy sometimes dictates that a worker will fare better in state court, in states where there are no damage caps limiting the type and/or amount of damages that can be awarded, and where judges and juries may be more receptive to employment cases than those in federal court, making it more likely that a jury will hear a case rather than have it thrown out on summary judgment.

However, for every state where a plaintiff is likely to fare better in state court, we can name one where they will be worse off in state court, or not have the ability to make that choice at all. Some states don’t even have their own antidiscrimination statutes, or have what’s known as a “private right of action” which allows workers to enforce their rights in court. Others have more restrictive damage caps than those under federal law, which haven’t changed since 1991. (That’s longer than it’s taken to raise the minimum wage, and we know how long that took!) Some state judges are relatively unfamiliar with employment statutes compared to federal judges, and others, forced to rely on campaign contributions, tend to favor those who can contribute the most to their re-election campaigns, while federal judges are appointed for life. Unfortunately, we have a relatively small amount of evidence about outcomes in state courts, but what we do have makes this one a tossup at best.

4. More cases are being resolved by the EEOC pre-litigation.

Of all the excuses proffered, this one had the most potential to persuade us that plaintiffs were actually benefiting. The EEOC has invested heavily in its mediation program which works to resolve claims before they are investigated, or, in some cases, as part of the conciliation process between employer and employee. And Mr. Dreiband, as the EEOC’s former general counsel, was very knowledgeable about the EEOC’s program.

But, as the saying goes, where’s the beef? I asked Mr. Dreiband following his presentation whether the EEOC had studied whether mediation was actually beneficial for plaintiffs in terms of damages awarded. He was unaware of any such studies, and indeed, the studies on the EEOC’s website are limited to the parties’ satisfaction with the process, as well as participating mediators’ evaluation of the program.

Initially, it sounds good when you hear that cases are resolved quickly, and before there is any litigation. Most people just want to move on with their lives, rather than spend years fighting their employer in court. But several aspects of the push to resolve cases so early should give worker advocates pause. A case resolved before any discovery takes place may mean that key evidence that makes the case a valuable one never sees the light of day. A case resolved where the employee doesn’t have an attorney may mean that the employee is outmatched and overcome by the power imbalance on the other side, as rare is the case where an employer wades in to any case without representation. And a process where 13.5% of cases settle for non-monetary compensation makes you wonder just how many people out there are settling for an apology or a good reference, no matter how much they were damaged.

Admittedly, a certain percentage of these cases would have been lost anyway, but settling a case for a token amount of money and an apology may not be much better. Before the EEOC so heavily touts the benefits of mediation, they should study exactly who benefits. Is it the employer who benefits most when litigation goes away quickly and cheaply? We simply don’t know.

So let’s review:  reducing the number of cases in federal court, no matter what the reason, doesn’t:

  • explain why plaintiffs fare so much worse in front of federal district court judges than juries;
  • explain why employment discrimination plaintiffs fare much worse than other plaintiffs on appeal;

And it doesn’t even explain that the reduction in federal court cases means plaintiffs are faring better in other forums. In fact, it may mean that, like the movie “Dumb and Dumber,” Schwab and Clermont’s next report should be called “Worse and Worser.”


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Barriers to Justice: Examining Equal Pay for Equal Work (Part I)

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TESTIMONY OF CYRUS MEHRI BEFORE THE COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
SEPTEMBER 23, 2008

[View Hearing Webcast]

Chairman Leahy, members of the Committee, thank you for inviting me to speak at today’s hearing. It is an honor to appear before you today, especially along with a genuine American heroine, Lilly Ledbetter.

My name is Cyrus Mehri. I am a partner at Mehri & Skalet. I have served as co-lead counsel in some of the largest and most sweeping race and gender employment discrimination cases in U.S. history: Roberts v. Texaco Inc. (S.D.N.Y 1997); Ingram v. The Coca-Cola Company (N.D. Ga. 2001); Robinson v. Ford Motor Company (S.D. Ohio 2005); Augst-Johnson v. Morgan Stanley (D.D.C. 2007); and Amochaev v. Smith Barney (N.D. Cal. 2008).

I have spearheaded a pro bono effort that has fundamentally changed the hiring practices of the National Football League for coaches as well as front office and scouting personnel. In addition, in 2004, my firm along with the National Council of Women’s Organizations launched the Women on Wall Street Project that focuses on gender inequities in the financial services industry.

Blessed with courageous and steadfast clients, I am most proud of the groundbreaking programmatic relief in our settlements. Senior management at companies such as Ford and Morgan Stanley, CEOs such as Neville Isdell of Coca Cola, and NFL owners such as Dan Rooney, have all praised the way we have sincerely and effectively brought about change at their organizations.

I am asked today to provide a practitioner’s perspective on employment discrimination claims in our federal courts, including pay discrimination claims. Let me say at the outset, that as a practitioner, I find Lilly Ledbetter’s story to be a compelling example of what is wrong with the system. In her case, the federal courts reached a decision that is entirely out of touch with the American workplace – requiring that she file an EEOC charge based on what she did not know, nor could have reasonably known, at that time regarding pay inequity. Her hard-fought trial victory vanished, and the factual findings of the jurors who heard her evidence firsthand counted for nothing.

Unfortunately, Ms. Ledbetter’s experience in the federal courts is far from isolated. It typifies the uphill battle that American workers face. A new study from Cornell University Law School confirms that thousands of American workers encounter a double standard in the U.S. Appellate Courts. The Cornell data shows that Ms. Ledbetter’s story is just the tip of the iceberg of a far larger systemic problem. After sharing key points from the Cornell study, I will provide real life examples of other “Lilly Ledbetters” who have had their civil rights remedies taken away by out-of-touch federal appellate courts. It is clear to me that to restore a level playing field, this Committee should infuse the federal bench with a dose of reality and appoint federal judges from diverse backgrounds, including those who have substantial experience representing average American workers.

The seminal new study is “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” by Dean Stewart J. Schwab and Kevin M. Clermont, both professors at Cornell Law School. 3 Harv. L. & Pol’y Rev. (forthcoming 2009). Cornell Law School is at the epicenter of scholarship on empirical legal studies and is the home of the peer-reviewed Journal of Empirical Legal Studies. Earlier this month, Cornell Law hosted the Conference on Empirical and Legal Studies, with 350 legal scholars and 120 new papers.

Dean Schwab and Professor Clermont both have sterling credentials. Dean Schwab served as a judicial law clerk for Justice Sandra Day O’Connor and is a law and economics scholar. In addition to teaching and serving as dean, he is a reporter for the Restatement on Employment Law. Professor Clermont is one of the nation’s leading scholars on civil procedure. Their article is to be published in the Harvard Law & Policy Review this winter. A pre-print was released by the American Constitution Society last week as part of a panel discussion moderated by former Sixth Circuit Judge Nathaniel R. Jones. During the panel discussion, Judge Jones declared that the study is a “profoundly important and significant work” that raises issues about the federal courts that “cry out for scrutiny and close examination.” (See the panel slideshow; listen to the panel discussion; questions from the audience. Windows Media Player required)

It is important to note that I am a Cornell Law School alumnus, serve on the law school’s advisory counsel, and have followed the law school’s empirical legal scholarship for several years, particularly as it relates to employment discrimination cases. I was interviewed for the Clermont/Schwab study (see footnote 47) to provide a practitioner’s insight.

THREE KEY FINDINGS OF THE CLERMONT/SCHWAB STUDY

Dean Schwab and Professor Clermont used data maintained by the Administrative Office of the United States Courts and assembled by the Federal Judicial Center, to analyze district court and appellate court data for cases identified by civil cover sheet category 442 “Civil Rights: Jobs”. Two-thirds of these cases are Title VII cases. The remainder are other cases involving discrimination in the workplace. They examined the most up-to-date and complete data available, covering the period from 1979 through 2007.

They made three key findings:

1. Double Standard on Appeal

Dean Schwab and Professor Clermont found that when employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. In striking contrast, when employees win at trial, they are reversed 41.10% of the time. Dean Schwab and Professor Clermont summarized:

In this surprising plaintiff/defendant difference in the federal courts of appeals, we have unearthed an anti-plaintiff effect that is troublesome.

They found this anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses:

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. 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 the witness at play. When the plaintiff has convinced the factfinder of the defendants’ wrongful intent, that finding should be largely immune from appellate reversal, just as defendant’s trial victories are. Reversal of plaintiffs’ trial victories in employment discrimination cases should be unusually uncommon. Yet we find the opposite.

They concluded that:

the anti-plaintiff effect on appeal raises the specter that appellate courts have a double standard for employment discrimination cases, harshly scrutinizing employees’ victories below while gazing benignly at employers’ victories.

The 8.72% reversal rate for employers compared to the 41.10% reversal rate for employees is shocking. From my perspective, a two to one disparity would be troubling, but could have possible explanatory variables such as the resource advantage that typically favors employers. However, an appeal reversal disparity that is five to one is indefensible. It creates a crisis of confidence in the federal courts. Further, it has debilitating consequences for civil rights litigants. This leads to the second important finding.

2. Precipitous Drop in Employment Cases Since 1998

Dean Schwab and Professor Clermont found an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007. Cases are down dramatically, and the data indicate the decline in private enforcement is more pronounced in recent years. Specifically, in absolute terms, the number of such cases fell from 23,721 in 1999 to 18,859 in 2005. They declined even more sharply in the last two years of the data to 15,007 in 2007. Some might say discrimination has gone down; however, statistics from the Equal Employment Opportunity Commission (EEOC) show that EEOC charges have remained steady if not increased from 1997 (80,680 charges) to 2007 (82,792 charges). Thus far in 2008, the EEOC has experienced a 15% rise in charges compared with last year. The rise in EEOC charges suggests that discrimination in the workplace has not decreased. In short, employment discrimination persists, but federal court cases enforcing anti-discrimination laws are down dramatically.

The five to one appeal reversal disparity could have a chilling effect on private Title VII enforcement of Title VII. Dean Schwab and Professor Clermont state:

Discouragement could explain the recent downturn in the number of cases…there could be a growing awareness, especially with the prolonged lack of success on appeal, that employment discrimination plaintiffs have too tough a row to hoe.” It appears that the U.S. Courts of Appeals have become increasingly hostile to workers, and workers are increasingly unable to find counsel ready to take these contingency cases. Wrongdoers in effect go scot-free, while workers expecting a level playing field face heart-breaking defeats.

American workers such as Lilly Ledbetter, having faced an unlevel playing field in the workplace, find an equally unlevel playing field in the courts. No wonder the number of discrimination cases filed in the federal courts is down by an astonishing 37%. The U.S. Courts of Appeals with the most dramatic drops in employment discrimination cases are:

  • 11th Circuit: (FL, GA, AL)
  • 5th Circuit: (LA, MS, TX)
  • 4th Circuit: (MD, VA, NC, SC, WV)
  • 8th Circuit (MO, MN, IA, AR, ND, SD, NE)
  • 6th Circuit: (MI, OH, TN, KY)

3. Troubling Patterns in the Trial Court

Dean Schwab and Professor Clermont’s study also finds that employment discrimination plaintiffs fare significantly worse in judge, or bench, trials than other plaintiffs. The district court judicial disparity is particularly evident when outcomes in judge trials are compared with jury trials. Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53%, a striking disparity.

The three key findings of Dean Schwab and Professor Clermont suggest that American workers are denied a level playing field in the federal courts. Let me next provide a window into the plight of American workers confronting discrimination in the workplace.

[Read Part II]

About the Author: Cyrus Mehri is a founding partner of the law firm Mehri & Skalet, PLLC. Mr. Mehri served as Class Counsel in the two largest race discrimination class actions in history: Roberts v. Texaco Inc. which settled in 1997 for $176 million and Ingram v. The Coca-Cola Company, which settled in 2001 for $192.5 million.  Both settlements include historic programmatic relief, featuring independent Task Forces with sweeping powers to reform key human resources practices such as pay, promotions and evaluations. Trial Lawyers for Public Justice named Mr. Mehri a finalist for “Trial Lawyer of the Year” in 1997 and 2001 for his work on the Texaco and Coca-Cola matters respectively.

In 2002 Mr. Mehri and Johnnie L. Cochran, Jr. released the report, Black Coaches in the National Football League: Superior Performance, Inferior Opportunities.  The report became the catalyst for the NFL’s creation of a Workplace Diversity Committee and the adoption of a comprehensive diversity program.  The NFL now has a record number of African American head coaches. Mr. Mehri graduated from Cornell Law School in 1988, and clerked for the Honorable John T. Nixon, U.S. District Judge for the Middle District of Tennessee. Mr. Mehri is a frequent guest on radio and TV and is guest columnist for Diversity, Inc.


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Barriers to Justice: Examining Equal Pay for Equal Work (Part II)

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TESTIMONY OF CYRUS MEHRI BEFORE THE COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
SEPTEMBER 23, 2008

[View Hearing Webcast] [Read Part I]

BATTLING DISCRIMINATION IN THE WORKPLACE: THE LONG HARD JOURNEY FOR WORKERS

During the last 15 years, I have interviewed hundreds of employees in dozens of companies. Invariably, they contact counsel as a last resort after exhausting all internal channels within a company. One of my clients, Bari-Ellen Roberts, described this in her book, Roberts v. Texaco. Ms. Roberts tried to work with her company to develop “best practices” regarding diversity and discrimination and turned to me only when the head of human resources shut down any constructive discourse. Ms. Roberts’ experience is consistent with my own observations. The vast majority of employees remain extraordinarily loyal to their companies despite significant discrimination in the workplace. Many victims of discrimination do not want to believe they are discriminated against and only reach this sad conclusion reluctantly.

Once employees decide to take action, they typically begin a long hard journey. At the outset, most Title VII plaintiffs have a hard time finding counsel. Civil rights counsel generally take cases on a contingency fee basis since individuals are rarely able to pay costs or fees. Because of the risk involved, counsel carefully vet their cases and tend to take only the strongest of cases. The pre-filing vetting process screens out non-meritorious cases. In short, the private bar serves as the first gatekeeper.

Next, the employee generally starts the pretrial discovery process against a large and often aggressive corporate law firm. The employee turns over documents and is deposed. It becomes an all-consuming process. Often, reliving the discriminatory experience in litigation can be just as painful as the difficult experience in the workplace. Motion practice follows and the District Courts serve as a fierce gatekeeper, tossing out a large segment of cases during pre-trial motions. At trial, employers win about 62.37% of jury trials and 80.38% of bench trials. Most victims of discrimination have the unhappy experience of losing their case prior to or during trial.

Those employees who are victorious at trial have genuine cases that are not frivolous. They have overcome long and extraordinarily difficult odds with able counsel. They have faced a determined and well-financed defendant, followed by intense scrutiny by a district court. After all this, these “victorious” employees face the U.S. Courts of Appeals that reverse their victories an incredible 41.10% of the time. These extreme odds make employers more brazen in the workplace and in the courtroom. Civil rights attorneys are forced to counsel their clients about these sobering realities and the small probability of success for even the most meritorious claims.

If U.S. corporations had 41.10% of their trial victories reversed by the appellate courts there would be a stampede of lobbyists from the Chamber of Commerce crying foul. By contrast, American workers do not ask for much. They merely want each case to be heard by judges who approach all cases with an open-mind, devoid of politics or ideology. They just want a fair shake, not a double standard from our federal courts.

In preparation for this hearing, I asked Terisa Chaw, Executive Director of the National Employment Lawyers Association (NELA), to canvass NELA members for real life examples of appellate reversals of employee trial victories. There was an outpouring of calls and e-mails describing how individuals with powerful evidence of discrimination had their trial victories reversed by the U.S. Courts of Appeals. Many talented attorneys even expressed concerns about whether they could continue their civil rights practices. An email from one attorney, Nancy Richards-Stower, exemplifies the distress echoed by many civil rights practitioners:

I hope the article explains that all that stands between total collapse of federal enforcement and its continuation is the plaintiffs’ bar. I can’t afford to go through federal summary judgment procedures, let alone trial and appeal. When I was young I used to go to federal court for civil rights justice. Now I can’t. Federal courts are hostile towards employee rights.

Let me now turn to three case studies from NELA members illustrating the double standard on appeal shown in the Clermont/Schwab data:

Case Study No. 1: Ledbetter v. Goodyear Tire & Rubber Co.

Many of you have heard about the Supreme Court’s Ledbetter decision, and Ms. Ledbetter who is testifying with me today will surely tell her compelling story. But the Ledbetter decision by the U.S. Court of Appeals for Eleventh Circuit is equally deserving of attention.

For nearly 20 years, Lilly Ledbetter worked at the Goodyear Tire plant in Gadsden, Alabama. She was hired in 1979 as a supervisor. She was one of very few women supervisors. Early on, she endured sexual harassment at the plant, and her boss told her he did not think women should be working there.

Throughout her employment, she received fewer and lower raises than male supervisors. Unfortunately for Ms. Ledbetter, these smaller increases had a cumulative effect: “At the end of 1997, she was still earning $ 3727 per month, less than all fifteen of the other [male] Area Managers in Tire Assembly. The lowest paid male Area Manager was making $ 4286, roughly 15% more than Ledbetter; the highest paid was making $ 5236, roughly 40% more than Ledbetter.” Goodyear had a merit compensation plan where employees’ salaries were reviewed annually by a supervisor who recommended salary increases. Though the record is clear that Ms. Ledbetter’s supervisor reviewed her salary annually from at least 1992 through 1998, no one took steps to bring her salary in line with the men’s.

After she filed a complaint with the EEOC in 1998, Ms. Ledbetter filed a lawsuit in federal court to recover the wages she was unfairly denied throughout her employment. The jury found that she had been given an unequal salary because of her gender and awarded her $223,776 in backpay, plus compensatory and punitive damages.

Goodyear asked the district court to set aside the jury verdict based on a statute of limitations argument. Generally, employees are required to file EEOC charges with the Agency within 180-days of the discrimination. Goodyear argued that it made no discriminatory pay decisions within 180 days of Ms. Ledbetter’s 1998 EEOC charge. The district court disagreed and found that there was sufficient evidence of pay discrimination within the 180-day period because a male supervisor who was paid the same salary as Ms. Ledbetter in 1979 was paid over $12,000 more a year than her in 1998.

The U.S. Court of Appeals for the Eleventh Circuit reversed the jury verdict, holding that Ms. Ledbetter could not recover for pay discrimination throughout her employment because Goodyear’s initial decision to pay her less was not made within 180 days of her EEOC complaint in 1998. This decision effectively barred Ms. Ledbetter from any recovery for any of the years of undetected discrimination in her rate of pay.

Moreover, the Eleventh Circuit’s decision was contrary to the well-established paycheck accrual rule applied by the EEOC and virtually all other U.S. Courts of Appeals. The paycheck accrual rule states that each paycheck founded in discrimination, including past discrimination, triggers a new 180-day period for filing a charge with the EEOC. The paycheck accrual rule enabled employees, who are understandably almost always unaware of salary disparities, to recover for pay discrimination even if the initial discriminatory decision occurred before the 180-day period. Ignoring the concealed nature of pay discrimination, the Eleventh Circuit rejected the paycheck accrual rule, preferring that extreme limits be placed on workers’ ability to recover hard-earned wages. When the Supreme Court affirmed the decision in 2007, it became one of the most controversial in recent Supreme Court history.

The National Women’s Law Center can provide more information on the impact of the Ledbetter Supreme Court decision.

Case Study No. 2: Ash v. Tyson Foods, Inc.

Anthony Ash and John Hithon, both African-Americans, worked as superintendents in the chicken processing plant run by Tyson Foods in Gadsden, Alabama. In their efforts to be promoted to the position of shift supervisor, both were rebuffed in favor of white employees. At trial, a jury heard evidence regarding the racial attitudes of the man who turned them down for promotion, as well as evidence of the relative qualifications of the whites he preferred. The jury concluded that Tyson was guilty of racial discrimination against both Messrs. Ash and Hithon and awarded each of them $250,000 in compensatory damages plus punitive damages.

There was testimony at trial that Thomas Hatley, the plant manager who made the promotion decisions, repeatedly addressed Messrs. Ash and Hithon as “boy.” Plaintiffs testified that they experienced these remarks as demeaning and hostile. Mr. Ash’s wife, present on one occasion, testified that Mr. Hatley laughed off her protest that her husband was a man, not a “boy.” In its closing argument to the jury, Tyson’s attorney conceded that Mr. Hatley’s use of the word “boy” could have racial connotations, but protested that the word was not delivered with that level of venom and hostility” claimed by the plaintiffs and their witnesses. The jury obviously disagreed.

In addition to the evidence of racist attitudes on the part of the decision-maker, plaintiffs offered substantial evidence that tended to show that under Tyson’s own written standards, Messrs. Ash and Hithon were more qualified than the promoted whites. Company policy preferred three to five years of experience, experience on-site at that plant, and longevity with the company. Messrs. Ash and Hithon, who had loyally worked for the company for 13 and 15 years respectively, met these standards, but the promoted whites did not. Moreover, one supervisor only went through the motions – interviewing Mr. Hithon after he had offered the job to a white applicant who had accepted the position.

The district court judge set aside the verdict, finding that there was no credible evidence that the Plaintiffs had superior qualifications and that the use of the word “boy” did not have racial connotations. The Court of Appeals for the Eleventh Circuit affirmed in an unpublished per curiam decision. Ignoring the jury’s contrary conclusion based on trial testimony and the demeanor of witnesses, as well as the concession of Tyson’s counsel, the Court of Appeals found that the decision-maker’s use of the word “boy” could never be evidence of discriminatory intent.

Acknowledging that Plaintiffs had adduced some evidence that their qualifications were superior to those of the successful white candidates, the Court of Appeals concluded that such evidence did not support a jury’s finding of discrimination unless the disparities in qualifications were so great that they “virtually jump off the page and slap you in the face.” The Court of Appeals concluded that the plaintiffs had not met this standard. The Court of Appeals cavalierly decided that the offensive use of the word “boy” could never be evidence of discrimination as a matter of law. The novel “jump off the page” standard the court articulated is patently absurd given that most discrimination is proven through circumstantial evidence.

In a per curiam decision the Supreme Court reversed, concluding that the “slap in the face” standard was “unhelpful” and that the term “boy” could be evidence of discrimination. On remand, however, the Eleventh Circuit has thus far stuck to its guns, purportedly following the Supreme Court’s guidance, but upholding its earlier conclusion that the Plaintiffs had not adduced sufficient proof of superior qualifications, and that the decision-maker’s use of the term “boy” was not evidence of racism.

The experience of Messrs. Ash and Hithon represents a classic example of the all-too-familiar pattern of judicial nullification of the right to a jury trial in discrimination cases. A properly instructed jury concluded that the man who rejected the Plaintiffs’ applications for promotion, in referring to the Plaintiffs as “boys,” exhibited racist tendencies, and that the promotions were awarded to lesser qualified whites. In holding that “boy” could never be construed as a racist remark, and that the jury incorrectly concluded that the promoted whites had fewer qualifications than those of the Plaintiffs, the Court of Appeals second-guessed the better informed factfinder.

For more information about Messrs. Ash and Hithon’s experiences of discrimination in the workplace and in the courts, contact Alicia Haynes of Haynes & Haynes, PC in Birmingham, Alabama who handled this case.

Case Study No. 3 : Septimus v. University of Houston

Susan Septimus worked for the University of Houston as an Assistant General Counsel handling business and transactional matters. In 1998, the University announced an opening for Associate General Counsel. Ms. Septimus informed her supervisor, General Counsel Dennis Duffy, that she was interested in the promotion. Mr. Duffy responded by criticizing her performance and comparing her to a needy former girlfriend. He flatly refused to consider her for the position and shortly thereafter hired an outside male candidate even before the deadline for accepting applications.

Following her denial of promotion, Mr. Duffy regularly verbally insulted Ms. Septimus, intimidated her in front of colleagues and generally created a hostile work environment. Ms. Septimus decided enough was enough and filed a grievance with the University. Six days later, Mr. Duffy retaliated by giving Ms. Septimus a negative performance review. Unbeknownst to Ms. Septimus, Mr. Duffy also brazenly wrote a memo that reflected his plans to retaliate against her for filing the grievance.

The University’s Chancellor hired an outside investigator – a well-known defense attorney – to examine Ms. Septimus’ complaints, as well as complaints of gender discrimination by two other women in the Office of General Counsel. The investigator issued a lengthy report finding that Mr. Duffy had discriminated against Ms. Septimus when he refused to consider her for the promotion, and that he had created a hostile work environment for women in general. Despite the extensive written report, a committee of University administrators concluded that the investigator’s findings of discrimination were unfounded.

Subsequently, Mr. Duffy followed through with his plans to retaliate against Ms. Septimus for filing a grievance. High-level administrators made it difficult for her to succeed in her job. The Chancellor informed Ms. Septimus that she could either stay in the Office of General Counsel and be supervised by her alleged harasser, Mr. Duffy, or transfer to a contract administrator position in a different department that also reported to Mr. Duffy at times.

Caught between a rock and hard place, Ms. Septimus took the contract administrator position. Her new supervisor criticized her work unfairly and forced her to get approval from the Office of General Counsel headed by Mr. Duffy on all legal work. Ultimately, Ms. Septimus could not endure this demeaning treatment and was forced to resign.

Ms. Septimus then exercised her civil rights and took her case to federal court. Though the district court judge summarily dismissed her gender discrimination claims before trial, the jury found in Ms. Septimus’ favor on retaliation and constructive discharge and awarded her $396,000. The Houston newspaper reported that jurors had “harsh words” for the University. One juror was dissatisfied by the employer’s inaction: “‘The University of Houston could have stepped in a lot sooner.’” Another juror was “troubled” that the University attempted to force Ms. Septimus to give up her legal rights before she could transfer to a new position.

The University asked the district court to set aside the jury’s verdict and order a new trial. When the district court did not, the University appealed to the U.S. Court of Appeals for the Fifth Circuit. On appeal, the University argued that the trial judge had used an erroneous jury instruction for the retaliation claim. Even though the University had arguably waived the objection by not raising it at trial, the Fifth Circuit boldly reversed the jury’s decision, holding that the trial court should have instructed the jury to use a “but for” causation standard, instead of the well-established “motivating factor” standard. Under the motivating factor standard, a plaintiff may prove retaliation by showing that retaliation was a “motivating factor” for the employer’s adverse employment decision. The Fifth Circuit decided that victims of retaliation who do not have direct evidence of retaliation must prove that “but for” retaliation they would not have endured an adverse employment action.

This case is an example of an appellate court reaching to overturn a jury’s decision in favor of an employee by shifting the legal standard. Even though the University failed to object to the jury instructions at trial, the Fifth Circuit, nevertheless, found that the use of the phrase “motivating factor,” instead of the nearly impossible “but for” causation standard, in the jury instructions was sufficient to set aside the jury verdict.

The double standard in appellate reversals that Dean Schwab and Professor Clermont uncovered and these examples of the impact of that double standard on real Americans raise significant questions about the federal judicial nomination process.

THE PATH TO A LEVEL PLAYING FIELD: DIVERSIFY THE JUDICIARY BY CASTING A FAR WIDER NET OF POTENTIAL NOMINEES

However discouraging the current state of affairs may seem, there is a clear path to a federal judiciary that would offer a level playing field for American workers. Namely, we need a fundamental shift that dramatically expands the pool of judicial nominees. The next President should seek, and this Committee should insist on, judicial nominees from widely diverse backgrounds. That means not just diversity in terms of race, gender and other personal traits. It means diversity in terms of legal expertise and life experiences.

In order to improve the public’s confidence that workers have a fair chance in court, we need more nominees confirmed to the federal bench who have experience representing ordinary Americans. We should value nominees who have devoted their careers to fighting poverty, expanding rights for children, enforcing civil rights, representing qui tam whistleblowers, helping break down barriers to equal opportunity or fighting for consumers. We should find potential nominees who have devoted their careers to representing ordinary Americans, small businesses and the underdogs of society. Until this major shift occurs, the double standard documented by Dean Schwab and Professor Clermont will persist and imperil civil justice in America.

Thank you.

[Read Part I]

About the Author: Cyrus Mehri is a founding partner of the law firm Mehri & Skalet, PLLC. Mr. Mehri served as Class Counsel in the two largest race discrimination class actions in history: Roberts v. Texaco Inc. which settled in 1997 for $176 million and Ingram v. The Coca-Cola Company, which settled in 2001 for $192.5 million. Both settlements include historic programmatic relief, featuring independent Task Forces with sweeping powers to reform key human resources practices such as pay, promotions and evaluations. Trial Lawyers for Public Justice named Mr. Mehri a finalist for “Trial Lawyer of the Year” in 1997 and 2001 for his work on the Texaco and Coca-Cola matters respectively.

In 2002 Mr. Mehri and Johnnie L. Cochran, Jr. released the report, Black Coaches in the National Football League: Superior Performance, Inferior Opportunities. The report became the catalyst for the NFL’s creation of a Workplace Diversity Committee and the adoption of a comprehensive diversity program. The NFL now has a record number of African American head coaches. Mr. Mehri graduated from Cornell Law School in 1988, and clerked for the Honorable John T. Nixon, U.S. District Judge for the Middle District of Tennessee. Mr. Mehri is a frequent guest on radio and TV and is guest columnist for Diversity, Inc.


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