october 1, 2008
SPECIAL EDITION: New Study Indicates Employment Discrimination Plaintiffs Fare Very Poorly in Federal Court

This week's edition of Workplace Week focuses on a recently released study by Stewart J. Schwab, dean of the Cornell Law School, and Kevin M. Clermont, law professor at the Cornell Law School, who found that "the federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts." The results of their research, analyzing data from the Administrative Office of the US Courts, appears in a piece entitled Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? which will be published in a forthcoming issue of the Harvard Law & Policy Review.

The results were released at 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)

Following the report's release, Cyrus Mehri testified (see Part I & Part II) about its results before the Senate Judiciary Committee in last week's hearing, Barriers to Justice: Examining Equal Pay for Equal Work. (See Hearing Webcast; Testimony of: Lilly Ledbetter; Lawrence Lorber; Statements of: Sen. Patrick Leahy; Sen. Dianne Feinstein; Sen. Russ Feingold)
today's workplace: the employee rights blog
Defense Attorneys Make Excuses, But the Outcome is the Same (Paula Brantner): 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. Comment
Barriers to Justice: Examining Equal Pay for Equal Work (Part II) (Cyrus Mehri): 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. 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. Comment
Barriers to Justice: Examining Equal Pay for Equal Work (Part I) (Cyrus Mehri): TESTIMONY OF CYRUS MEHRI BEFORE THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE: 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. Comment
this week in the courts
Welch v. Campia ?(First Circuit; No. 072470)
Decision Date: September 23, 2008
In a lawsuit filed against the Chief of Police and the Town on the grounds that defendants impermissibly retaliated against plaintiff for exercising his First Amendment rights, grant of summary judgment in favor of defendants is reversed in part and affirmed in part where: 1) plaintiff's non-reappointment constituted an adverse employment action sufficient to support a section 1983 claim; 2) district court properly granted summary judgment in favor of co-defendants because defendant was the only one with the appointment authority; 3) plaintiff failed to explain how defendants' actions resulted in unreasonably inferior work conditions; 4) defendants' argument that plaintiff's First Amendment claim failed; 5) the district court erred in placing the burden on plaintiff to show that the reasons articulated by defendant were pretextual; 6) liability can be imposed for defendant's decision not to reappoint plaintiff; 7) plaintiff's whistleblower claims survived since there was a q! uestion as to whether he was not reappointed because of his involvement in the grand jury investigation; and 8) district court erred in concluding that plaintiff could not maintain an action for interference with advantageous relations.
Poore v. Simpson Paper Co. ?(Ninth Circuit; No. 05-36060)
Decision Date: September 22, 2008
In a dispute over retirement benefits, summary judgment for defendant is affirmed where: 1) plaintiffs interests had not vested, and the court lacked ERISA jurisdiction, because the collective bargaining agreement in question reserved defendant's right to change the welfare benefits in question; and 2) plaintiffs' contractual claims did not trigger jurisdiction under the Labor Management Relations Act because the rights in question were not vested.
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