Tagged: pro-employer

“[G]iven the history and make-up of the current Court, it is unlikely that the ideal plaintiff exists to persuade the Court to establish a bright-line rule opposing pre-dispute mandatory arbitration in employment discrimination cases.  Additionally, the Court would likely hesitate to establish a blanket rule allowing mandatory arbitration in employment agreements due to strong opposition from employee advocacy groups and members of Congress. The more likely scenario is one in which Congress takes action by passing a new law banning this practice. In fact, some legal scholars have argued that Congress should amend the FAA to exclude pre-dispute mandatory arbitration for employees and consumers, thereby allowing states to regulate this phenomenon and ensuring that parties who do participate in pre-dispute arbitration agreements are on relatively equal footing.”

Source: Bahareh Moradi. Pre-Dispute Mandatory Arbitration Employment Agreements. Upper Level Writing Requirement Research Papers. pg. 22-23. 2014.

“The ideal plaintiff to bring suit to resolve whether an employee can litigate a civil rights violation despite a pre-dispute mandatory arbitration agreement will present a set of facts that strongly persuade the Court one way or the other. For the individual employee and employee advocate groups, the ideal plaintiff would have to sway the Court to broadly ban pre-dispute mandatory arbitration in employment agreements. The plaintiff-employee would need to be able to demonstrate that his or her claims are of such egregious violations of constitutionally protected rights that they demand review and oversight of a judge — someone who is publicly authorized through election or appointment to uphold the constitution and the federal laws guaranteeing the rights that the plaintiff-employee claims were violated.”

Source: Bahareh Moradi. Pre-Dispute Mandatory Arbitration Employment Agreements. Upper Level Writing Requirement Research Papers. pg. 21-22. 2014.

“Businesses pick from among several major firms that provide arbitration services, such as the National Arbitration Forum (NAF). These firms collect steep fees and pay arbitrators by the hour. Because major corporations create millions of dollars in business, a firm and its arbitrators have an incentive to keep corporate clients happy or risk losing business. Stark evidence of this ‘repeat player bias’ was revealed by a study that NAF’s top arbitrators rules for businesses against consumers 93.8% of the time.”

Source: Alliance for Justice. “Arbitration Activism: How the Corporate Court Helps Business Evade Our Civil Justice System.” pg. 4. 2013.

“The Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar[, 133 S. Ct. 2517 (2013)] represents a watershed moment in employment discrimination litigation. The majority opinion posited that an employee might try to avoid termination by filing a fake retaliation claim against his employer. It also expressed fears about courts, administrative agencies, and employers being subjected to floodgates of litigation. It then explicitly used these concerns about fakers and floodgates to tip substantive discrimination law in an employer-friendly direction.”

Nassar expresses three ideas about employees and their claims. First, the sheer volume of cases is enough to favor a more onerous causal standard. Second, enough employees will bring false claims that substantive retaliation doctrine needs to protect courts, administrative agencies, and employers from fakers. Third, existing procedural mechanisms are not adequate to ferret out these false claims. Rather, they must be dealt with by altering the substantive law.

This Article responds to the alleged fakers and floodgates problem. First, it argues that the Court has created reasons to alter the law that are not grounded in congressional intent. Title VII contains numerous provisions that limit the reach of the statute. Beyond these restrictions, Congress never expressed any intention to limit the number of claims heard by the Equal Employment Opportunity Commission (EEOC) or the courts based on concerns about the sheer volume of such claims. Nor did Congress express any intent that the courts use the substantive law to screen for false retaliation cases. Through various provisions in Title VII, Congress established a statute designed to protect employers, employees, and courts. Multiple provisions establish a mechanism to ensure that employees are able to bring claims, that employers can adequately defend against claims, and that courts do not hear claims that can be resolved by the EEOC. Moreover, Title VII was enacted in the presence of several existing devices that can be employed to stem any false claims and any related floodgates of litigation. These devices allow judges to sanction parties who file false claims and to dismiss these cases. While the Supreme Court considers these devices to be adequate to handle the misbehavior of employers, in Nassar the Court rejected the possibility that procedural mechanisms are sufficient to deal with false claims filed by employees.

Second, although we argue that the Court’s fakers and floodgates arguments are improper, they are also problematic because they are not supported by empirical or other evidence. To the contrary, available evidence shows that the number of employment-related civil rights claims is decreasing both in raw numbers and in proportion to the number of civil claims filed in federal court.”  This Article questions whether the judiciary generally, and the Supreme Court in particular, is the best institution to make factual claims about fakers and floodgates.

Third, this Article also challenges the accuracy of the Court’s assertion that changing the substantive law will reduce the number of spurious claims. At best, such a change is a blunt instrument for handling frivolous claims. Most importantly, changing the law represents a choice about what counts as legal retaliation and what does not. By requiring plaintiffs to establish but for cause, the Supreme Court has declared that an employer does not retaliate against an employee (in a legal sense) if the causal connection is less strong. In other words, if an employee can show only that retaliatory motive was a motivating factor in her termination, she has not suffered retaliation under Title VII. 

Fourth, we discuss the dangers of the floodgates and fakers arguments becoming explicitly embedded in judicial doctrine. Such a default position distracts from the larger congressional goal of preventing retaliation and confuses the underlying legal doctrine. Thus far, two courts have already cited the Court’s concerns in their opinions. This Article calls for the EEOC and other organizations concerned with employment discrimination to develop a factual response to arguments about fakers and floodgates before these myths develop into an uncontestable judicial narrative that courts can use to justify other changes in the law.

Finally, we argue that the fakers and floodgates arguments are consistent with a broader problem-courts’ infusion of their own views of evidence of discrimination into procedure and substance. Courts use these devices to prevent juries from hearing factually intensive civil rights cases, even when a plaintiff presents evidence of a colorable claim. (emphasis added)

Smh…

Source: Sandra F. Sperino and Suja A. Thomas. Fakers and Floodgates. Stanford Journal of Civil Rights & Civil Liberties. pg. 223-225. June 2014.

“Many Americans do not understand what arbitration is, and cannot fully comprehend the rights they are relinquishing when signing these contracts.”

Source: Janna Giesbrecht-McKee, The Fairness Problem: Mandatory Arbitration in Employment Contracts. 50 Williamette Law Review 259, 260, 2014.

“Summary judgment abuse and overuse occurs in all types of cases, but is especially magnified in employment discrimination cases. This problem is exacerbated by the daily ritual of appellate courts affirming summary judgment grants to employers, often without comment, at a rate that far exceeds any other substantive area of federal law.”

One defense attorney on yesterday’s panel at NYU said that 95 percent of his employment discrimination cases were won on summary judgment. The agreed upon range from others on the panel was around 70-80 percent. How can this be so if the Civil Rights Act was amended in 1991 to allow for jury trials in these specific types of cases? Given that whites, at the macro level, do not experience discrimination because of their race in this country and white male federal judges are over-represented throughout our judicial system, what role does this play in explaining why a large number of employment discrimination cases never make it to a jury? They would like you to believe the reason is because many of these cases are “frivolous” and “non-meritorious,” but Leonard Rowe’s case, as well as mine, demonstrate otherwise. Shouldn’t an impartial jury ultimately decide the merits of these cases since there is clearly a disconnect between the lived realities of whites — especially those who sit on the bench — and those who have been historically oppressed?

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, 686 (2012–2013).

the inevitable impact of Twombly and Iqbal on employment discrimination cases.

[W]hile Iqbal and Twombly may not yet have produced wholesale dismissal of employment discrimination complaints, given employment discrimination heuristics and precedent in other fields that is a fair prediction.

Indeed, even if cases are not dismissed at a higher rate, the Iqbal/Twombly analysis is likely to have a substantial impact on the subsequent “only procedural” rulings that a judge must make — the discovery that a court allows (for example, only discovery on the “plausible” claims), the class certification decision, and the efficacy of expert testimony. All these decisions will make summary judgment for the employer even more likely.

Source: Hon. Nancy Gertner and Elizabeth M. Schneider. “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases, 57 N.Y.L. Sch. L. Rev.767, 777-78 (2012–2013).

“Why are the federal courts so hostile to discrimination claims?”

Each year, the United States District Court for the District of Massachusetts holds an extraordinary panel. All active judges are present to answer questions from the bar. A lawyer’s question one year was particularly provocative: “Why are the federal courts so hostile to discrimination claims?” One judge after another insisted that there was no hostility. All they were doing when they dismissed employment discrimination cases was following the law—nothing more, nothing less.

I disagreed. Federal courts, I believed, were hostile to discrimination cases. Although the judges may have thought they were entirely unbiased, the outcomes of those cases told a different story. The law judges felt “compelled” to apply had become increasingly problematic. Changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 were tantamount to a virtual repeal. This was so not because of Congress; it was because of judges.

Decades ago, law-and-society scholars offered an explanation for that phenomenon, evaluating the structural forces at work in law-reform litigation that lead to one-sided judicial outcomes. Focusing on employment discrimination claims, Marc Galanter argued that, because employers are “repeat players” whereas individual plaintiffs are not, the repeat players have every incentive to settle the strong cases and litigate the weak ones. Over time, strategic settlement practices produce judicial interpretations of rights that favor the repeat players’ interests. More recently, Catherine Albiston went further, identifying the specific opportunities for substantive rulemaking in this litigation—as in summary judgment and motions to dismiss—and how the “repeat players,” to use Galanter’s term, take advantage of them.

In this Essay, drawing on my seventeen years on the federal bench, I attempt to provide a firsthand and more detailed account of employment discrimination law’s skewed evolution—the phenomenon I call “Losers’ Rules.” I begin with a discussion of the wholly one-sided legal doctrines that characterize discrimination law. In effect, today’s plaintiff stands to lose unless he or she can prove that the defendant had explicitly discriminatory policies in place or that the relevant actors were overtly biased. It is hard to imagine a higher bar or one less consistent with the legal standards developed after the passage of the Civil Rights Act, let alone with the way discrimination manifests itself in the twenty-first century. Although ideology may have something to do with these changes, and indeed the bench may be far less supportive of antidiscrimination laws than it was during the years following the laws’ passage, I explore another explanation. Asymmetric decisionmaking—where judges are encouraged to write detailed decisions when granting summary judgment and not to write  it—fundamentally changes the lens through which employment cases are viewed, in two respects. First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics—the Losers’ Rules—that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.

Great article by Nancy Gertner [not a woman of color]. This is what happens when the federal courts have intentionally been filled with ideologically conservative, white male, Republican appointed federal judges, particularly since Ronald Reagan became president 34 years ago. Below is Gertner discussing this topic at the New York Law School’s Symposium titled “A View From the Bench — The Judges’ Perspective on Summary Judgment In Employment Discrimination Cases.” [go to the 38:38 mark]

Major reform is needed — not only to strengthen the Civil Rights Act of 1964, but to develop structural mechanisms that will eliminate racist and corrupt judges who intentionally ignore the law and deprive plaintiffs in employment discrimination cases of their right to a jury trial under the color of law.

Source: Nancy Gertner. “Loser’s Rules.” The Yale Law Journal Online. October 16, 2012.  http://yalelawjournal.org/the-yale-law-journal-pocket-part/procedure/losers%E2%80%99-rules/