Monday, March 5, 2012

Despite what some think, employers do not set out to discriminate

At her cleverly-named employee-side blog, Donna Ballman reported on a study published by the National Employment Lawyers Association—an association of plaintiff-side employment lawyers—which concluded that plaintiffs only win 15% of employment cases in federal courts. When Donna compared that number to the 51% win-rate in non-employment cases, she concluded that federal judges are hostile to plaintiffs in employment cases.

Donna’s post led to the following Twitter conversation between Donna, management-side attorney Jeff Nowak, and me:

I do not believe that federal court judges (or any set of judges, for that matter) possess a predisposed hostility towards plaintiffs in employment cases. To the contrary, the low win-rate of plaintiffs in these cases is more explained by the fact that most employers simply do not discriminate.

When I think back over my 15-year career representing employers, I can think only of a few (2 or 3) that set out to discriminate against an employee. (To be fair, many more committed sins of ignorance, acting not out of malice, but out of inexperience with the complexities of the myriad employment laws they are charged with understanding and following.) The reality is that lawsuits can result from well-intentioned employers making well-intentioned personnel decisions.

We live in a society where people are quick to blame others for their mistakes. People choose to litigate instead of accepting their own responsibility for a job loss. These ideas more likely explain the 15% win-rate for plaintiffs than any judicial predispositions for employers.