Professor of Law, George Washington University Law Center. An earlier version of this paper was presented at the Symposium on Employment Discrimination and the Problems of Proof held at Louisiana State University Law Center. I am grateful for the opportunity to participate in the symposium and for the comments I received at that time, particularly those of the respondent Vice Chancellor Gregory Vincent.
When the United States Supreme Court reverses a lower court and renders a unanimous verdict for the plaintiff in an employment discrimination case, as it did in Reeves v. Sanderson Plumbing,1 you know that something is seriously amiss. Reeves was not the first case in which the Court unanimously reversed a lower court in order to correct an obviously flawed decision; indeed, in the previous three years it had done so on four prior occasions.2 Surely no one would accuse the current Supreme Court of being plaintiff-oriented in discrimination cases, and the question I want to address in this essay is why have employment discrimination cases become so hard to win? Why is it that courts continually impose roadblocks for employment discrimination plaintiffs that do not exist for other civil plaintiffs? The Civil Rights Act of 1991 was intended to address judicial hostility to discrimination cases by expanding the statute's protection in a number of areas and by substantially improving the remedies available under Title VII. Yet, in the very first case the Supreme Court decided under the Act, it sharply restricted the reach of the statute effectively delaying its introduction for a number of years.3 In many ways, judicial hostility has gone unabated, though much of that hostility is now felt in the lower courts rather than in the Supreme Court, which today often acts as a surprising taming force on appellate courts.
As indicated by the Court's unanimity, Reeves, was not a difficult case. Although several courts had found ambiguity in the Court's prior decision in St. Mary's Honor Center v. Hicks,4 the Supreme Court clearly believed that its prior decision answered the question posed in Reeves, namely whether a plaintiff need present evidence beyond pretext in order to prevail on a discrimination claim. Quoting extensively from its decision in Hicks, the Court found that once a plaintiff provides sufficient evidence to raise a credible question of pretext, the issue becomes one for the jury and is not to be disturbed by a court except in the extraordinary case. As the Court stated in Hicks, the factfinder "may, together with the elements of the prima facie case, suffice to show intentional discrimination," and that "no additional proof of discrimination is required."5 That said, the Fifth Circuit was not alone in requiring some direct evidence of discrimination in order for a plaintiff to survive a summary judgment motion prior to the Court's clarification in Reeves.6
Several reasons help explain why employment discrimination cases are so difficult to win. First, a general misperception, one that has been fueled by the popular anti-employment discrimination rhetoric often financed by conservative interest groups, strongly influences courts' perception of the cases. This general misperception is that employment cases are easy-not difficult-to win, and the volume of employment discrimination cases is said to reflect an excessive amount of costly nuisance suits. This perception is reflected in one of the more ironic statements ever to be uttered by a federal judge, when Judge Frank Easterbrook of the Seventh Circuit Court of Appeals wryly noted that plaintiffs cannot win all close cases.7 Fair enough, but one might respond, how about just a few? As I will discuss below, employment discrimination cases are notoriously difficult-not easy-to win.
In addition to the general misperception regarding the success of discrimination claims, courts are also affected by various biases that help explain their treatment of employment discrimination cases. As discussed below, those biases differ depending on the nature of the claim; for example, with respect to the Americans with Disabilities Act ("ADA"), courts seem quite concerned about the potential breadth of the statute-not a totally unfounded concern-and have, therefore, trimmed its scope as a way of ferreting out some of the more extravagant claims, but in the process have excluded many claims that were clearly intended to fall within the statute's ambit. When it comes to race cases, which are generally the most difficult claim for a plaintiff to succeed on, courts often seem mired in a belief that the claims are generally unmeritorious, brought by whining plaintiffs who have been given too many, not too few, breaks along the way. These biases, as well as others, inevitably influence courts' treatment of discrimination cases, and help explain why the cases are so difficult to win. Furthermore, as discussed below, these biases can be extremely difficult to overcome.
This essay will proceed in three parts. First, I will establish that employment discrimination cases are unusually difficult to prove, and then I will discuss how judicial bias influences courts' treatment of discrimination claims. In the last part, I will explore whether this bias can be contermanded or whether it might be an entrenched part of our judicial system. I should note that in this essay I am going to make some rather broad claims that will not necessarily be supported by the bevy of citations that are often typical of law review writing, but it is my hope here to ask and explore questions rather than to resolve them in any definitive way.
There is it seems a general consensus that employment discrimination cases are too easy to file, and all too easy to win. This sentiment is doubtlessly, at least in part, fueled by the spate of popular books decrying the damage done by employment suits, as well as the relentless efforts by well-financed lobbying and philanthropical groups with a conscious aim to limit the reach of the antidiscrimination laws.8 But this picture is grossly distorted, and while there are large numbers of employment discrimination suits-and I have suggested that such claims are generally too easy to file with the Equal Employment Opportunity Commission9-these suits are far too difficult, rather than easy, to win.
Each year about 100,000 employment discrimination claims are filed with the Equal Employment Opportunity Commission and about 20,000 cases are filed in federal court. These numbers have increased significantly during the last decade due to expansion of important antidiscrimination laws. Passed in 1990, the Americans with Disabilities Act now accounts for nearly a quarter of discrimination claims filed in any given year, and the 1991 Amendments to Title VII created additional incentives for plaintiffs to bring claims. These changes have resulted in a three-fold increase in federal court filings during the last decade,10 and employment discrimination cases now account for just under ten percent of the cases filed in federal court.11 One interesting and perhaps noteworthy aspect of the filings is that they have increased during the late 1990s despite an extremely strong economy with the lowest post-World War II level of unemployment on record.
As has been well documented, plaintiffs in employment discrimination suits generally fare worse than most other kinds of civil plaintiffs. Only about fifteen percent of the claims filed with the Equal Employment Opportunity Commission result in some relief being provided to plaintiffs, a percentage that tends to fall below other administrative claims.12 In federal courts, plaintiffs have long suffered success rates that fall below other civil plaintiffs, and it does not appear that this trend has been reversed or even modified by the infusion of judges appointed by President Clinton, most of whom had little background in employment discrimination and those who did were more likely to have represented corporate defendants than individual plaintiffs.13 Indeed, the Clinton Administration's record on enforcement of employment discrimination statutes generally compares unfavorably to his Republican predecessors, indicated, in part, by the decline in case filings-by nearly one-third-from those instituted by the Administration of George Bush, Sr.14
Case Dispositions 1995-1997
(See Table in Pdf File)
The difficulty plaintiffs have in federal court can perhaps best be measured by their success rates, particularly when compared to other cases Tables One and Two are derived from data compiled by the Administrative office of the Courts and maintained in an accessible database by Cornell Law School. 15 Table One provides a summary of the various ways in which cases are disposed of in federal court for three different claims as classified by the Administrative office of the Courts: jobs (the category for employment cases), insurance claims and personal injury claims. 16 There are more than two times as many employment claims as either insurance or personal injury. However, the most noteworthy statistic is that the methods of case dispositions are roughly the same across categories, with a slightly higher percentage (15 85 percent) of employment cases being resolved through pretrial motions than is true for either insurance (12 98 percent) or personal injury cases (9.4 percent).17
Plaintiff Success Rates 1995-1997
(See Table in Pdf File)
Table Two provides the plaintiff's success rates based on the total number of cases disposed of, and here some interesting differences appear. of...