Federal Bench is Biased Against Discrimination Cases
The Wall Street Journal Law Blog today discussed a Wall Street Journal article about the disproportionate rate at which plaintiffs' employment discrimination cases are lost in federal court and asked: Is the federal bench biased against discrimination cases? As reported:
From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy.
This is no coincidence. To those of us who have been representing employees in discrimination cases for many years the data comes as no surprise. We know this because we have lived it.
Our experience is that many federal judges are hostile to our cases and so are their law clerks. All you have to do is read the comments to the WSJ Law Blog today where the former federal law clerk refers to these cases as "dogs" to get a flavor of the attitude.
It is indisputable that far too many federal judges decide to disregard the Federal Rules of Civil Procedure and Evidence when it comes ruling on discrimination cases:
- Rather than let the juries decide when material facts are in dispute as the rules require, judges routinely decide to parse through the evidence, weigh each piece separately, and decide why each is not enough to support a claim.
- They routinely and improperly assess the credibility of the testimony, a task specifically assigned to juries not judges.
- They routinely disregard the employee's evidence, and that of their co-workers, while giving credence to the self serving evidence of the employer.
- Even when there is direct evidence of discrimination -- like "you're too old to do this job" -- or "women just be at home with their kids"-- it will often be dismissed as a "stray remark" too remote in time to be considered, or not made by someone influential enough in the decision.
- In sexual harassment cases, the judges often decide that the harassment may indeed have occurred but that it wasn't severe enough for a jury to consider.
These are just a few of the improprieties that are regularly faced in representing victims of discrimination I can think of off the top of my head I'm sure I could be here all day adding to this list if there was a reason to do so.
Every lawyer knows, and the federal rules specifically state, that judges are supposed to grant summary judgment only when there is no genuine issue as to any material fact. Inferences are supposed to be made in favor of the employee, not the employer when the employer requests that the case be thrown out. All relevant evidence is supposed to considered by the jury. The rules are supposed to be interpreted liberally, not conservatively which means in favor of the employee in these circumstances, not the employer.
The Supreme Court of the United States made all of this abundantly clear in the Reeves v. Sanderson Plumbing case almost ten years ago, a case in which the Court of Appeals ignored the evidence presented by the plaintiff. (including the remark that he "looked so old he must have come over on the Mayflower" ) In reversing, the Reeves Court plainly set forth the appropriate standards for review:
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The court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.
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Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.
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Although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.
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The court should give credence to the evidence favoring the nonmovant as well as that “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.
In spite of this very clear language, it seems like there are a whole lot of federal judges who can't seem to break their old patterns. They need to get rid of those pre-Reeves canned opinions used to dump these cases, and do their duty to follow precedent set forth by the United States Supreme Court. That's really not too much to expect.
Discrimination is hard to prove, but even with the proof of disparate treatment, stereotyping, or racially and sexually charged remarks, many federal judges simply decide that these particular parties are not entitled to their day in court.
Is it because there are not enough women and minorities on the federal bench? Is it because they are insensitive to discrimination? Is it because they care more about reducing the size of their dockets than the administration of justice? Is it because they are simply pro-business and anti-little guy? All we know is that whatever the reason, the result is quite often arbitrary , erroneous, and unfair, and it's about time that the discrimination is exposed.
image: http://images.google.com/imgres?imgurl=http://www.fotosearch.com/comp/BDX/BDX341/judge-handing-down_~bxp64659.jpg&im
