Justice Doesn't Come Easily for Victims of Discrimination

Several federal juries, even in conservative Alabama, have sent clear messages to wayward employers: "If you discriminate, harass, and retaliate, we will hold you accountable--and we will make you pay."

In spite of that encouraging trend, plaintiffs in employment cases still face a hard road. A recent Wall Street Journal article reports that several studies show discrimination cases tend to fare worse in court than other kinds of civil cases. And that is likely to remain the case, even though the Lilly Ledbetter Fair Pay Act--which has its roots in Alabama--has been passed.

One study showed that federal plaintiffs in discrimination cases won in court 15 percent of the time, compared to 51 percent in other kinds of civil cases. Reports the Journal:

The odds against winning discrimination cases have some employee lawyers reluctant even to try. "We will no longer take individual employment-discrimination cases, because there's such a high likelihood of losing," New York plaintiffs' attorney Joe Whatley Jr. says. Job-discrimination case filings declined by 40% from 1999 to 2007, federal court records show.

Whatley has practiced in Alabama and is a principal in Whatley, Drake & Kallas, which has an office in Birmingham.

One concern is that quite a few employment cases now are dismissed before they even get started:

Equally troubling to critics, though, is that federal judges also now routinely terminate employment-discrimination cases through motions to dismiss, meaning that the plaintiffs aren't allowed to conduct fact finding to support their claims, according to a law-review study due to be published in August by the University of Illinois College of Law.

The study analyzed the impact of the U.S. Supreme Court's 2007 ruling in Bell Atlantic Corp. v. Twombly, which authorized federal judges to dismiss cases unless plaintiffs can detail enough facts in their initial complaints to state a "plausible" claim--a higher standard than previously existed. Although the Twombly case involved an antitrust dispute, it has since been applied broadly to discrimination cases, says Joseph Seiner, a professor at the University of South Carolina School of Law, who wrote the study.

The news is not all dreary for plaintiffs. In fact, some experts say the poor win rate in court is not necessarily a bad sign. Strong employment cases, they say, tend to settle before ever reaching the courtroom. "If it's a real case, they settle," one defense lawyer says. "Employers aren't dumb."