Let me be blunt. Employment discrimination cases today are to the federal judiciary what prisoner rights cases were before the passage of the Prison Litigation Reform Act in 1996. In Yogi Berra terms, it’s déjà vu all over again: “Plaintiff ’s claims lack merit,” “Plaintiff ’s claims are frivolous,” and the newest Twom-bal induced mantra, “Plaintiff ’s claims are implausible”— all incantations heard with stunning frequency in the federal district courts. In the courts of appeals the mantra morphs slightly: “Defendant’s Summary Judgment (or Motion to Dismiss) affirmed without comment” appears with alarming frequency. One recent study “revealed that over 80 percent of defendants’ motions for summary judgment in employment discrimination cases are either granted or granted-in-part when decided by the district court.” The same study also found that, between the six and twelve months following the decision in Twombly, almost 81% of district court decisions citing Twombly in employment discrimination cases granted, in whole or in part, a motion to dismiss. Two Cornell law professors, who have done extensive empirical studies of “win” rates in employment discrimination cases from data from the Administrative Office of the United States Courts, note, “The most significant observation about the district courts’ adjudication of employment discrimination cases is the long-run lack of success for these plaintiffs relative to other plaintiffs.” From 1979 to 2006, “the plaintiff win rate for jobs cases (15%) was lower than for non-jobs cases (51%).” Employment discrimination plaintiffs fare even worse on appeal! Federal appeals courts “reverse plaintiffs’ wins below far more often than defendants’ wins below.” A plaintiff who wins at trial has “a chance of retaining [the] victory that cannot meaningfully be distinguished from a coin f lip.” In contrast, a defendant who wins at trial “can be assured of retaining that victory” on appeal. The Cornell Law professors reach a very disturbing conclusion: “In this surprising plaintiff/defendant difference in the federal courts of appeals, we have unearthed an anti-plaintiff effect that is troublesome.” Of course, even a casual reader of the courts of appeals’ employment discrimination decisions would not have needed an empirical study to observe this trend. There is something seriously amiss here, and it cannot be blamed solely on the number of employment discrimination cases filed that lack merit.

Do you think these dismal statistics would get any better if more employment discrimination cases were decided by an impartial jury, and not a single (typically white) finder of fact?

Source: Hon. Mark W. Bennett. From the “No Spittin’, No Cussin’ and No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four Decade Experience. 57 N.Y.L. Sch. L. Rev.685, 697-99 (2012–2013) (citing Cornell Law professors Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. &Pol’y Rev.103, 127 (2009)).