A study conducted in the United States has revealed a great contradiction in the labor rights and the experience of the litigants who decide to claim them in the judicial plane. Although laws have been created to protect workers and create mechanisms to make it easier for workers to defend their rights, in practice it has been proven that this progressive vision is very short.
The American Bar Foundation, The National Science Foundation and The Searle Freedom Trust sent teams of research assistants to federal records centers to code the characteristics of a random sample of labor civil rights cases filed over a 15-year period: 1,788 cases in total.
After performing statistical analyzes on the results of cases, they obtained a random sub-sample of cases in four types of claims (race, sex, age and disability) and four cases of greater theoretical interest (dismissal, early settlement, late liquidation and trial). They then conducted in-depth interviews with the parties and their lawyers. The interviews were recorded, transcribed and analyzed. This combination of data generated many findings that go against common misunderstandings about employment discrimination litigation.
Among these, ten myths about labor rights:
1. Discrimination in employment is “a thing of the past”.
While public information shows that Americans are now far less prejudiced on the grounds of race and sex, and although the most cruel forms of such segregation have been eliminated from the US workplace, several studies show that employment discrimination persists. Among the most striking, a 2007 study by a sociologist at Harvard University, Devah Pager, found that black men without a criminal record were less likely to receive a callback for a job interview than white men with a criminal record.
2. Discrimination in the workplace acquires mainly subtle forms and is limited to acts that result from an implicit bias.
While there is abundant research on the pervasiveness of unconscious bias, the stories of the reported claimants were often not subtle. The plaintiffs interviewed reported that they threw sex toys in their faces. Another woman reported being told she could get a job when she could use the men’s urinal and another that she was fired when she told the employer about a cancer diagnosis. The defendants often challenge these facts, but the behavior that is often proven is flagrant.
3. Victims of discrimination demand quickly.
Taking the example of racial discrimination claims, it is estimated that only about 1% of African-American workers who perceive that they have been discriminated against at work in the last year file a complaint with the Equal Employment Opportunity Commission (EEOC). The investigation shows that less than a quarter of EEOC’s complaints lead to the filing of a lawsuit.
4. The number of civil rights claims in employment continues to grow, thus overburdening the federal courts.
While the number of civil rights claims on employment increased dramatically during the 1990s, peaking at 23,735 in 1998, the number of lawsuits filed has dramatically decreased since 2014, when it was reduced to 13,831 in 2014.
5. A large proportion of civil rights claims are filed as collective actions or with the intervention of the EEOC.
In fact, 93% of the claims are filed by a single claimant; only 1% of the claims are certified as class actions and the EEOC intervenes in about 400 cases per year.
6. The plaintiffs have a high probability of success and the monetary compensation is great.
Although the coverage of the media gives that impression, the study revealed that 36% of the plaintiffs have dismissed their cases or have lost in summary motions and 50% of the plaintiffs receive agreements from the beginning of an average of $30,000. Of those cases that go to trial (6%), only one third ends with a victory for the plaintiff.
More significantly, the study revealed that plaintiffs often pay a high personal cost for their participation in discrimination lawsuits, starting at the workplace. Once they state that they are being discriminated against and present a complaint, they face ostracism from management and even from coworkers. That does not include the high personal cost to the person and their family members.
Many claimants report experiencing depression, alcoholism and divorce due to the stress of the litigation. Many plaintiffs begin litigation in hopes of regaining their jobs; that almost never happens.
7. Employers oppose the anti-discrimination law.
On the contrary, we find that the defendants and their lawyers express their support for a workplace free of discrimination, affirm that they do not tolerate discrimination in their organizations and say that “if they find it, they fix it”.
How do they explain the discrimination claims against them? Overwhelmingly, they tend to reject the validity of any claim from a particular claimant.
8. The demands of many plaintiffs are frivolous.
Our interviews with defendant employers and their attorneys reveal that they often believe that plaintiffs are misinformed about the law or seek undeserved compensation. However, there is no direct evidence to determine from the beginning of a case whether it is weak or not. Unlike medical treatment records, which can be objectively reviewed by experts, labor records are created by the same defendants by the employer and may contain a subjective evaluation of performance and misconduct.
An indication of this difficulty can be seen in our data. The EEOC created priority codes to predict the likelihood of success when complaints are filed. We obtained commission records and related them to a large subset of our application cases. The EEOC priority codes had no power to predict the results of our cases.
9. Plaintiffs’ lawyers accept too many weak cases.
Defendants and their attorneys often blame plaintiffs’ attorneys for not filtering weak cases. Our interviews with the plaintiffs’ attorneys found that they generally accept only 1 in 10 possible cases of labor civil rights they review. In fact, the plaintiffs’ lawyers articulated a long list of criteria they use to assess whether to bring a case.
An unfortunate consequence of its selection is that it can work against less inventive claimants and people of color. Black plaintiffs were significantly less likely to have legal representation in a litigation, with the result that they were more likely to have their cases dismissed.
10. Civil rights claims in employment now contain a large proportion of sexual harassment claims.
Cases as important as the accusations of sexual harassment filed against the late Roger Ailes and former Fox News commentator Bill O’Reilly may give the impression that such claims have become predominant. However, all claims of sexual discrimination continue without claims of racial discrimination in court records (37% and 40%, respectively), and claims for age (22%) and disability (20%) also represent an important part of the cases. Sexual harassment was raised in 17% of the cases in the sample. Much more common are the claims of dismissal, retaliation and discriminatory promotions.