Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, March 2, 2012

Are Federal Judges Hostile To Employment Plaintiffs? Report Says Yes

The National Employment Lawyers Association (NELA), which is the employee-side lawyers’ organization, just released a study called Judicial Hostility to Workers’ Rights: The Case for Professional Diversity on the Federal Bench. The statistics confirm what every employment law practitioner knows already: federal courts are mostly a terrible place for employees:

• From 1979-2006, the plaintiff win rate for employment cases (15 percent) was lower than non-employment cases (51 percent).
• For cases going to trial, employment discrimination plaintiffs (28.47 percent) won less often than other plaintiffs (44.94 percent).
• Employees succeeded on appeal only 9 percent of the time, while employers won 41 percent of appeals.

Judicial Hostility, p. 4.

The report points to the lack of federal judges who, as lawyers, actually represented, you know, people. I don’t mean corporations, which are now considered by the same federal bench to be people. I mean living, breathing human beings.

Employees face all kinds of judge-created obstacles. The report cites a few (my colleagues and I could probably name a dozen more):

“Stray Remarks” – Allows judges to disregard discriminatory statements made by supervisors or other employees as merely “stray remarks,” and therefore not evidence of discrimination
“Business Judgment” – Permits judges to defer to an employer’s “business judgment” instead of carefully examining whether an asserted justification for an adverse employment action was pretext for unlawful discrimination. Some courts have gone so far as to accept the defendant’s asserted reasons for the adverse employment action being challenged, even when the employer’s explanation is harsh or unreasonable.
“Self-Serving Witness” – Enables judges to presume the credibility of testimony from defense witnesses with a vested interest in helping employers avoid liability, while categorizing assertions by or on behalf of plaintiff-employees as purely “self-serving.”

Judicial Hostility, p. 5.

The report cites to one other factor peculiar to federal courts: summary judgment. The fact is that summary judgment standards in federal court result in very few employment cases actually making it to trial.

• Between 1979 and 2006, employees in discrimination cases won only 4 percent of pretrial adjudications – the bulk of which can safely be assumed to have been on defendants’ motions for summary judgment.

Judicial Hostility, p. 8.

The report recommends that the President appoint judges from diverse professional backgrounds. The lack of judges who have worked for non-profit organizations that assist the poor and judges who have represented plaintiffs in employment and civil rights cases certainly skews the bench to the employer side.

I have another suggestion. Congress needs to step in. When the bench creates obstacles, Congress can lift them. They’ve done it with the Lilly Ledbetter Fair Pay Act, the ADA Amendments Act, and the VOW to Hire Heroes Act. They can fix some more of these problems by making the standards for proving and winning discrimination cases clear; by laying out the burden of proof for both plaintiffs and defendants so it’s not open to hostile interpretation; and by eliminating the judge-created doctrines that make employment law cases ridiculously hard to win.

Do you want change? Contact your member of Congress. Send them this report. Tell them that it's their job to make sure hard-working Americans don't get short-changed in federal court.


  1. he smiles, with all due respect, Donna, this post sounds more like a whiner's complaint than one of credibility. and I know you can do better than this.

    I'm not a lawyer and this wouldn't even come close to convincing me.

  2. Somehow I knew you'd like this one Griper! It may be whining, but it's true. I've had several management-side attorneys quietly confirm that they always want to be in federal court if they can. I think that proves my point more than anything else could.

  3. he smiles, yup. lol
    but there is the opposite side too, isn't there? several emplyee-side attorneys would confirm that they want to be in State court if they can, wouldn't they?

    be honest, Donna, the whole argument isn't about fairness. its about where attorneys feel a win is most likely and this post reveals that. both sides want the odds favoring their side. that is why i called it whining.

  4. Just out of curiosity...

    And I know that killed the cat!

    Why does this report NOT surprise me? Corporate law pays well and would support the judges into office (however they get there-appointment or election). Employee based law is hardly lucrative enough to do so-comparatively speaking. The judges are going to know on which side their bread is buttered.

    Now-granted-they are "supposed" to be impartial and fair. Realistically, they are people who "owe" people and companies for getting them where they are. It makes perfect sense.

    Do I like it? Hell, no. But do I understand it? Oh, yes.

  5. Hey very good blog!!!! Wow... Gorgeous .. Amazing


  6. Im plaintiff went thru federal court and attorney wrote her own summary judgment. They actually forged judge signature I filed Motion 60. This case is a federal discrimination suit with a large federal government contractor.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.