Thursday, February 19, 2009

Documentation is key to dismissal of discrimination cases


While the laws under which employees can bring lawsuits are expanding, employees’ successes continue to retract, at least in federal court. Consider the following statistics, culled from an article in today’s Wall Street Journal on employers’ degree of success in federal court cases.

  • From 1979 through 2006, federal plaintiffs won 15% of employment discrimination cases, as compared to a 51% success rate in all other civil cases.

  • 12.5% of federal employment discrimination cases are terminated via summary judgment, with employers filing 90% of those motions. By comparison, only 3% of contract cases and 1.7% of personal-injury and property damages cases were summarily dismissed.

The explanation of U.S. District Court Judge David Hittner as to why employers enjoy this level of success in employment cases is very insightful: “Companies often have an extensive record that this [employee] was not doing their job well and that is the reason for the termination.”

Employers should heed Judge Hittner’s words. Success in discrimination cases is related to the employer’s ability to prove that it had a legitimate reason for the employment action taken. That reason will be much more believable, and much less likely to be criticized, if it is well-documented. Courts often remind us that they do not sit as super-personnel departments and will not second-guess employers’ reasoned business decisions. By having a historical paper trail to support all employment decisions, employers have taken the crucial first step toward the dismissal of any later challenges.

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